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## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Bryan W. Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Lommissioner Carlos Rubinstein, 

### Commissioner Mark R. Vickery, P.G., 

### Executive Director

Protecting Texas 

### by Reducing andPreventing Pollution 

## 91 7108 2133 3935 2304 8271 DocketNo. 2008-1631-RUL

1"'" 

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## Alfredo Armendariz, Ph.D. RegionalAdministrator U.S. Environmental ProtectionAgency

- Region 6 1445 

## Ross Avenue Dallas, Texas 75202-2733**~Oll** 

## March 11, 2efft

Dear Dr. Armendariz: On February 9, 2011, 

## the Texas Commission on Environmental Quality (Commission) adopted revisions to the State Implementation Plan (SIP). The Commission adopted amendments to § 101.1 

## of 30 

## TAC Chapter 101, 

## General Air Quality Rules, and §§ 116.12 

## and 116.150 

## of30 

## TAC Chapter 116, 

## Control ofAir Pollution by Permits for New Construction or Modification, and corresponding revisions to the state implementation plan. The rulemaking amends definitions in Chapter 101 

## to remove language regarding specific maintenance and nonattainment areas. In addition, Chapter 116 

## is amended to remove language indicating that the one-hour thresholds and offsets are not effective unless the United States Environmental Protection Agency (EPA) promulgates rules, and to add a requirement for continued applicability of nonattainment New Source Review until the EPA approves its removal for areas attaining the ozone national ambient air quality standard. Finally, the rule amendments address issues identified by the EPA in its disapproval notice published in the FederalRegister

## on September 15, 2010 

## Enclosed are the proposed revisions to the SIP, a public hearing certification, a complete record ofthe public hearings, and the accompanying orderfor this rulemaking. The Commission also requests EPA consider, as part ofits review ofthis SIP submittal, the rules amended and adopted by the Commission on May 25, 2005, 

## effective on June 15, 2005. 

## Although EPA's records contain this 2005 

## submittal, the Commission is supplying, as part of this transmittal, this previously submitted rulemaking to ensure that EPA reviews the new submittaltogetherwith the 2005 

## submittal. I lookforward to your expeditious approval ofthese SIP revisions.

P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us

## Sincerely,

# ~~t~~J.,. BWSjjbh Enclosures

## cc: The Honorable RickPerry, Governor ofTexas Mr. Toby Baker, Office ofBudget, Planning and Policy, Office ofthe Governor Mr. Mark R. Vickery, P.G., Executive Director, Texas Commission on Environmental Quality

### Docket No. 2010-0625-RUL



## THE STATE OF TEXAS COUN1YOFTRAVIS

This is to certify that the attached are true and correct copies ofdocuments for revisions to the Texas State Implementation Plan, adopted on February 9, 2011, 

## pursuant to 40 

## Code of Federal Regulations § 51.104. 

## I am the records administrator for Air Permits Division of the Texas Commission on Environmental Quality (Commission).

Steve Hagle Director, Air 

## Permits Division Texas Commission on Environmental Quality

### Texas Commission on Environmental Quality Public Hearing September 20,2010 30 TAC Chapter 10I General Air Quality Rules 30 TAC Chapter 116 

### Control ofAir Pollution by Permits for New Construction or Modification

Rule Project No. 2008-030-116-PR One-hour Ozone Major Source Thresholds and Emission Offsets

## INTRODUCTION

The Texas Commission on Environmental Quality (commission) held a public hearing in Austin

on September 20, 2010 to receive testimony regarding revisions to 30 TAC Chapter 101, General Rules and 30 TAC Chapter 116, Control ofAirPollution by Permits for New Construction or Modification; and corresponding revisions to the Texas state implementation plan (SIP).

This rulemaking would changes the defmitions ofthe terms 

### maintenance area and nonattainment

area in Chapter 101 by removing language regarding specific areas and referencing the defmitions in the federal rule. Also, it revises § 116.150 to apply the requirements ofthis section

as of the date of issuance of the permit rather than the date when the permit is declared administratively complete. The rulemaking removes language stating that one-hour ozone thresholds and offsets will not be required unless the EPA promulgates rules. Additionally, it adds language to Chapter 116 that makes clear that areas subject to NNSR requirements remain

so until the EPA approves removal.

The commentperiod closed on September 27, 201 O. All testimony and comments have been reviewed and seriously considered. This hearing record contains a complete record ofthe public hearings and is divided into the following four sections:

• Public Notification and Proposal

• Written and Oral Testimony

• Evaluation ofTestimony

• StaffRecommendations

## Additional copies ofthis hearingrecord are maintained in the TCEQ central office at 12100 Park 35 Circle, Austin, Texas 78753. Forfurther information, contactBlake Stewart at (512) 239- 6931.

# PUBLIC NOTIFICATION AND PROPOSAL

## PUBLIC NOTIFICATION

Notificationto the public ofthe proposed revisions was conducted by the following procedures:

I. Publication ofthe notice ofpublic hearing in the following newspapers on the dates listed: Austin American-Statesman Fort Worth Star-Telegram Houston Chronicle August 13,2010 August 13, 20I0 August 13, 20I0

2. Publication ofthe public hearing notice inthe Texas Register

## on August 27, 2010 (30 TexReg 7935).

3. Publication ofthe proposed rules in the Texas Register

## on August 27, 2010 (30 TexReg 7676).

4. Correspondence forwarding the notice ofpublic hearing to the following officials and agencies:

Speaker ofthe House Lieutenant Governor City ofEI Paso City ofVictoria Planning Department Dallas Department ofHealth and Human Services EI Paso City-County Health District Federal Highway Administration

### Fort Worth Public Health Department Galveston County Health District Houston Department ofHealth and Human Services Harris County Pollution Control Department North Central Texas Council ofGovernments Houston-Galveston Area Council South East Texas Regional Planning Commission Texas Department ofTransportation Texas Transportation Institute Arkansas Department ofPollution Control and Ecology LouisianaDepartment ofEnvironmental Quality
New Mexico Air Quality Bureau Oklahoma Department ofEnvironmental Quality
U. S. Environmental Protection Agency

## EXAMPLE OF NEWSPAPER CLASSIFIED AD FortWorth Star-Telegram August 13,2010



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11/131201 0Proposal for Decision The State Office ofAdministrative Hearings issued a Proposal for De· cision and Order to the Texas CommissLon on Environmental Quality on August 11, 2010, in the matter of the Executive Director of the Texas Commission on Environmental Quality, Petitioner v. Jason Rustman; SOAH Docket No. 582-10-2134; TCEQ Docket No.**2008~** 1514-WQ-E. The eommission will consider the Administrative Law Judge's Proposal for Decision and Order regarding the enforcementaction againstJason Rustman on a date and time to be determined hythe Office ofthe ChiefClerk in Room 20lS ofBuildingE,I2100 N. Interstate 35, Austin, Texas. This posting is Notice ofOpportunity to Comment on the Proposal for Decision and Order. The comment period will end 30days from date ofthis publication. Written public comments should be submitted to the Office ofthe ChiefClerk, MC·105, TCEQ, P.O. Box 13087, Austin, Texas 78711-3087. Ifyou have any questions or need assistance, please contact Melissa Chao, Office of the ChiefClerk, (512) 239-3300. TRD-201004770 LaDonna Castanuala Chief Clerk Texas Commission on Environmental Quality Filed: AllguB118, 2010



### Public Hearing on Proposed Revisions to 30 TAC Chapters 101 and 

### 116 and to the State Implementation Plan The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed re· visions to 30 Texas Administrative Code (TAC) Chapter 101, General AirQualityRules, §I01.1, andChapter 116, Control ofAirPollution hy Permits for New Construction orModification. §116.12 and §116.150; andcorrespondingrevisions to the state implementationplan (SIP),**un~** derthe requirements ofTexas Health and Safety Code. §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code ofFedera! Regulations §51.102 ofthe United States Environmental Protection Agency (EPA) regulations concerning SIPs. The proposed rulemaking would amend definitions in Chapter 101 to remove languageregarding specific maintenance andnonattainmentareas. Additionally, the proposed rnIemaking would amend Chapter 116 to remove language indicating that the one-hour thresholds and offsets are not effectivc unless the EPA promUlgates rules. The proposed rulemaking would also amend Chapter 116 to add a requirement for continued applicabiJity ofnonattammentNew Source Review until the EPA approves its removal for areas attaining the ozone national ambient air quality standard. In addition, the proposed rules address issues identified by the EPA in its September 23, 2009, disapproval notice. The commission will hold a public hearing on this proposal in Austin on September 20, 2010, at 2:00 p.m. in Building E Room 201 S, at the commission's central office located at 12100 Park 35 Circle. The heRring is structured for the receipt oforal orwritten comment<; by interested persons. Individuals may present oral statements when called upon in order ofregistration. Open discussion will not be permitted during the hearing; however, commission staffmembers will be avail· able to discuss the proposal 30 minutes prior to the hearing. LeDonna Castafiuele Chief Cieri< Texas Commission on Environmental Quality Filed: August 18, 2010 Waste Landfill on the southeast side ofOdem; approximately 200 feet from the 

### end ofCoUDty Road49 and approximately 1.8 miles southeast ofthe intersection ofU.S. Highway 77 and Fann-to-Market Road 631 in San Pamcio County, Texas 78370. CITY OF HOUSTON has applied for a renewal ofTPDES PermitNo. WQOOI0495150 which authorizes the discharge of treated domestic wastewater at a daily average flow not to exceed 700,000 gallons per day. The facility is located approximately 600 feet east ofU.S. Highway 59 at Greens Bayou Bridge on the south bank ofGreens Bayou in Harris County, Texas 77050. CITY OF WESLACO has applied for a renewal of TPDES Pennit No. WQOOI0619005, which authorizes the discharge oftreated domestic wastewater at an annual average flow not to exceed 2,500,000 gallons per day. The facility is located at 5210 South Midway Road, approximately 0.2 mile west and 0.6 mile north ofthe confluence of the South Donna Drain and Llano Grande Lake and approximately 3.2 miles SO\lth ofthe Missouri·Pacific Railroad southwest ofthe City of Weslaco in Hidalgo County, Texas 78596. CITY OF BEASLEY has applied for a renewal ofTPDES Pennit No. WQOO 11 45000I, which authorizes the discharge oftreated domestic wastewater at a daily average flow not to exceed 125,000 gallons per day. The facility is located approximately 3,000 feet east ofthe intersection ofU.S. Highway 59 (SouthwestFreeway) and Farm·to-Market Road 1875, approximately 3,000 feet west-southwest ofthe intersection ofU.S. Highway 59 and Eslieb Road, On the frontage ofEmerson Road south ofthe City ofBeasley in Fort Bend County, Texas 77417. GALVESTON COUNTY WATER CONTROL AND IMPROVE· MENT DISTRICT NO. 12 has applied for a renewal ofTPDES Pennit No. WQOOI2039001, which authorizes the discharge of treated domestic wastewater at an annual average flow not to exceed 1,000,000 gallons per day. The facility is located approximately 500 feet east of State Highway 146 and approximately 2,500 feet southeast ofthe intersection of Fann-to-Market Road 518 and State Highway 146 (adjacent to 524 Cien) 

### in Galveston County, Texas 77565. SKYMARKDEVEWPMENT COMPANYINC has applied for arna· joramendmentto TPDES PermitNo. WQOOl4793001 to authorize the relocation ofthe facility and the point ofdischarge. The application also, is a rcquest 

### to continue authorization for the discharge oftreated domestic wastewaterata daily average flow notto exceed 800,000 gal. Ions perday. The facility will be located on the north side ofthe 18,200 block ofRaven Rock Lane in Fort Bend County, Texas 77469. HAPPY HILL FARM CHILDREN'S HOME INC has applied for a new permit, Proposed TCEQ Permit No. WQ0014976001, 

### to authorize the disposal oftreated domestic wastewater ata daily average flow not to exceed 20,000 gallons per day via surface irrigation of38 acres of non-public access agricultural land. The facility was previously permitted under Pennit No. WQOOl1638001 which expired May I, 2009. This permitwill not authorize a discharge ofpollutants into waters in the State. The wastewater treatment facility and disposal site are located approximately 2.0 miles northeast ofthe intersection of U.S. Highway 67 and State Highway 144 in Somervell County, Texas 76048. Ifyou need more infonnation about these permit applications Or the permitting process, please call the TCEQ Office ofPublic Assistance, Toll Free. at 1-800-687-4040. General infonnation about the TCEQ can be found at ourweb site atwww.TCEQ.state.tx..us. Si desea informacion en Espaftol, puede Hamar aI1-800-687-4040. TRD-201 004768 

# +



# + +



# + +



# +

INADDITION August

## 27, 2010 

## 35 TexReg 7935Public Nolice The Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance, under Title 

### XIX ofthe Social Security Act. The proposed amendments are effective September 1.2010. The first adjuslInent to the proposed rates related to the no-cost inpatient hospital rebasing initiative complies with tbe 2010-2011 General Appropriations Act (Anicle 

## n, mISC, Rider 68, Senate Bill 

### 1. 8lst Legislamre, Regular Session, 2009). This rider requires HHSC to 

### rebase acute care bospital rates within available funds (at no additional cost). Specifically, the legislation requires HHSC to update the paymentdivision standarddollaramounts (PDSDAs) anddiagnosis related Notice ofCorrection The Texas Health and Human Services Commission (HHSC)**with~** draws its intent to submit Amendment 944, Transmittal Number 

### TX 10--051, to the Texas State Plan for Medical Assistance, under Title 

### XIX ofthe Social Security Act, wbicb would have proposed to cover certain pharmacy supplies as part ofthe borne bealth benefit that may beprovided by a licensedpbarmacyprovider. llliSC intends to submit the amendment with updated language at a later date. HHSC will notify the public when tbe amendment is finalized and will accept public comment at that time. Pleasedirectquestions regarding the amendmentto BarbaraDean, Policy Analyst, by mail at the Texas Health and Human Services Commission. P.O. Box 13257, H-600, Austin, Texas 78711; by telepbone at (512) 491-1I01; by facsimile at (512) 491-1953; or by e-mail at Barbara.Dean@hhsc.state.tx.us. TRD-201004656 Steve Aragon ChiefCounsel Texas Health and Human Services Commission Flied: August 11, 2010 Persons who have special communication or other accommodation needs who are planning to attend the hearing sbould contact Cbarlotte Hom, Office ofLegal Services at (512) 239-0779. Requests should be made as far in advance as possible. Written comments may be submitted to Devon Ryan, Me 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed La (512) 239-4808. Electronic comments may be submitted at: http://wy

..·w5.tceq.state.tx.us/ruleslecamments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2008-030-116-PR. The comment period closes September 27, 2010. Copies of the proposed IUlemaking can 

### be obtained from the commission's Web site at http://www.tceq.state.tx.uslnavlruleslpropose_adapt.hlml. For further information, please contact Blake Stewart, Air Permits Division, (512) 239-6931. TRD-201004712 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Flied: August 13, 2010 

# • • • Texas Health and Human Services Commission

Texas Boarding House Model Standards Introduction: The Legislature througb House Bill 216, 81st Legislature, Regular Session, 2009, crealed Health aod Safety Code Cbapter 254, Boarding Home Facilities. Section 254.003 directs the Health and Human Services Commission (HHSC) to develop and publish model standards forthe operation ofboarding home facilities relating to: construction 

### and remodeling ofboarding homes; sanitary and related conditions; the reporting and investigation ofinjuries, incidents, and unusual accidents and the establishment ofpolicies and procedures to ensure resident health and safety; assistance with self-administering medication; requirements for in-service educationofthe facility's staff; criminal history record checks; assessment 

### and periodic monitoring to ensure that a resident does not require personal care, nursing or other services and is capable ofself-administering medication. The legislation further directed HHSC to make the model standards available to local counties or municipalities tbat choose to require boarding homes to obtain a pennit to operate the boarding home. Definitious: A. Boarding bome facility means an establishment that: 1. furnishes, inone ormore buildings, lodging to three ormorepersons with disabilities or elderly persons who are unrelated to the owner of the establishment 

### by blood or marriage; and 

# ••• group (DRG) factors with more recent cost data and 

### to proportionately reduce the PDSDAs within available funds. In addition, thc Legislativc Budget Board (LBB) and the Governor's Office informedHHSC in a letter dated May 17,2010, oftheirrevision to the Spending ReductionPlanfor the 201 0-2011 Biennium submitted by HHSC in response to the January 15, 2010. letter from the Governor, Lieutenant Governor, and Speaker requesting a spending reduction proposal. In response to this direction, llliSC proposes to adjust payments for inpatient bospital services. The result ofthis revision is that the payment rates for inpatient bospital services reimbursed under (DRG) prospective payment system (with the adjustments for the no-cost rebasing) will be reduced by one percent effective September 1,2010, consistentwith the May 17, 2010, direction from the LBB and tbe Governor's Office. The rates are proposed to be effective September I, 2010. The proposed amendment:s are estimated to result in an additional. annual aggregate expenditure reduction of $2,597,824 for the remainder offederal fiscal year (FFY) 2010, with approximately $1,842,897 in federal funds and $754,927 in State General Revenue (GR). For FIT 2011, the estimated additional aggregate expenditure reduction is $31,**173,~92,** with approximately $19,687,871 in fede",1 funds aod $11,486,021 in GR. Interested panies may obtain copies of the proposed amendment by contacting Kevin Nolting, Director ofRate Analysis for Hospital Services, 

### by mail at the Rate Analysis Department, Texas Health and Human Services Commission, P.O. Box 85200, H-400, Austin, Texas 78708-5200; by lelepbooe at (512) 491-1348; by facsimile at (512) 491-1998; or bye-mail atKevin.Nolting@hhsc.state.tx.us. Copies of the proposals will also be made available for public review at the local offices ofthe Texas Department ofAging and Disability Services. TRD·201004756 Steve Aragon Chief Counsel Texas Health and Human Services Commission Filed: August 17, 2010



# • ••

35 TexReg 7936 

## August27,2010 Texas Register(aHg) and Subsection (i) expire September 1, 2007. Those subsections contain the requirement that the Division develop a list of doctors licensed in this state who are approved by the Division (ADL) to provide health care services under the Ad, eligibility requirements for those doctors. and rulemaking authority related to the ADL. Section 402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under the Labor Code. Section 402.061 provides that the Commissioner of Workers' Compensation shall adopt rules as necessary for the implementation and enforcement of Title 5, Labor Code. The following statutes are affected by this proposal: 28 TAC §180.20 and §180.26

- Labor Code §408.023(k) and §415.021. §180.20. Commission ApprovedDoctorList. §180.26. DoctorandInsurance Carrier Sanctions. This agency hereby certifies thatthe proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt. Filed with the Office ofthe Secretaryof State on August 17, 2010. TRD-201004760 Dirk Johnson General Counsel Texas Department of Insurance, Division 01 Workers' Compensation Eartiest possible dale of adoption: September 26,2010 For further information, please call: (512) 804-4703 

# • • • TITLE 30. ENVIRONMENTAL QUALITY 

# PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 101. GENERAL AIR QUALITY RULES SUBCHAPTER A. GENERAL RULES 30 TAC §101.1 The Texas Commission on Environmental Quality (commission or TCEO) proposes an amendment to §101.1. The proposed amendment to §101.1 will be submitted to the United States Environmental Protection Agency (EPA) as a revision"to the state implementation plan (SIP). BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE

- The EPA rules implementing the 1997 eight-hourozone standard

did not require regulated entities to continue to use the more stringent major source thresholds and emission offset requirements ofthe one-hour ozone standard that previously applied to them when implementing New Source Review (NSR) and Title V permitting for the 1997 eight-hour ozone standard. The EPA rule (known as Phase I) was successfully challenged in South Coast Air Quality Management District v. EPA (South Coast) 472 F.3d 882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying thet the vacatur was limited to the issues on which the court granted the petitions for review). The EPA has interpreted the court ruling as restoring NSR applicability thresholds and emission offset requirements under the one-hour ozone standard. The South Coast decision was upheld by the Supreme Court on January



## 35 TexReg 7676 

## August27,2010 Texas Register 14,2008. TCEO is proposing concurrent amendments to 30 TAC Chapter 116 that make clear that permitted facilities in areas that are nonattainment for the**one~hour** ozone standard are subject to major source thresholds and emission offsets of the one-hour ozone standard on the effective date of the adopted rules. In order to prevent future confusion over designations and classifications and their related applicability thresholds and emissions offset requirements, TCEQ is proposing changes to the definitions in §101,1(54), concerning maintenance area, and §101.1(70), concerning nonattainment area. Because maintenance and nonattainment areas and their boundaries are SUbject to change based on federal actions, this amendment will eliminate references 

### to specific maintenance and nonattainment areas in favor of a more general definition that indicates the federal regUlations that define these areas and the federally applicable designations and classifications. In order to ensure that the public has access to up to date information regarding the specific descriptions of nonattainment and maintenance areas, the commission regularly posts information regarding the designation process for new national ambient air quality standard (NAAOS) on the TCEO pUblic Web site. Staff has previoUSly presented this rule amendment (RUle Project 2008-030-116-PR) to the commission for consideration. At the February 25, 2009, commissioner's agenda, the commission remanded the rule project to the executive director's staff in anticipation of additional direction or action by the EPA, because EPA continued 

### to indicate in various federal notices its intent to complete rulemaking regarding NSR anti-backsliding requirements post the South Coast decision. EPA's proposed rule to implement the 1997 8-hour ozone NAAOS revision on subpart 1 reclassification and anti-backsliding provisions under the former 1·hour ozone standard was published in the January 16, 2009, Federat Register, but has not yet been finalized. This proposed rulemaking removes language regarding the exemptions from nonattainment new source review (NNSR) that were vacated by South Coast. On September 23, 2009, the EPA pUblished notice of the proposed disapproval of past revisions to the Texas NNSR SIP (74 Federal Register48467, September 23, 2009) that are related to this proposed amendment. In an effort to ensure that TCEO regulatory requirements regarding the NNSR permitting program meets the requirements of the Federal Clean Air Act (FCAA) and are approvable into the SIP, the commission is proposing an amendment to eliminate any deficiencies that would prevent approval. SECTION DISCUSSION §101.1, Definitions The commission proposes to amend the definition of maintenance area in §101.1(54). This amendment removes the specific descriptions of maintenance areas within the state in favor of a more general definition that makes clear that these ar· eas are designated by federal action. Similarly, the commis· sion proposes 

### to amend the definition of nonattainment areas in §1 01.1 (70) to remove all references to specific nonattainment areas in §101.1(70)(A)

- (G) and retain those parts of the definition that refer to federal regUlations and the Federal Regis

## ter. These changes help ensure that When changes are made to maintenance areas and nonattainment areas as a result of federal action, these rules will not 

### be rendered incorrect. Also, for the one-hour ozone NMQS, the designations and classifica· tions in 40 Code of Federal Regulations (CFR) Part 81 Were retained by EPAfor purposes of anti-backsliding, 70 Federal Regisler 44470 (Augusl 3, 2005). Upon determination by EPA that

### any requirement is no longer required for purposes of anti-backsliding, the requirement will no longerapply. Additionally, the definition of reportable quantity contains references to §1 01.1 (70) in §1 01.1 (88)(A)(i)(I1I)(-e-), (-0-), (-w-), (-pp-), and (-zz-) that would 

### be incorrect based on the proposed amendment to §101.1(70). The commission is proposing an amendment to §101.1(88) that 

### corrects these references. FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT 

### Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed 

### rule is in effect, no fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed changes to Chapter 101. The proposed rulemaking would amend Chapter 116 and Chap

### ter 101 

### to ensure the criteria of the one-hour ozone nonattainment rules for major source emission thresholds and emission offset requirements are properiy implemented according to the EPA's interpretation of recent federal court decisions. The fiscal impacts of amendments to Chapter 116 are detailed in the preamble for that proposed rule change. This fiscal note details the fiscal impacts ofthe proposed amend

### ment, which is administrative in nature. Thus, the proposed rule is not expected to have any fiscal impacts on local governments or other regulated entities that own or operate major emission sources in ozone nonattainment areas of the state. The proposed amendment to Chapter 101 amends definitions so that 

### the chapter is updated to reflect recent federal court. decisions that affect the ozone standards, thresholds. and emission offset requirements found in the proposed changes in Chapter 116. 

### The proposed rulemaking will prevent confusion among the regulated community and ensure more clarity when detennining which ozone nonattainment standards, thresholds, and emission offsets apply when facility modifications occur and permit reviews are conducted. PUBLIC BENEFITS AND COSTS Nina Chamness also determined that for each year of the first five years the proposed rule is in effect, the pUblic benefit anticipated from the changes seen in the proposed rule will be clar

### ity and consistency in the imptementation of ozone standards, thresholds, and emission offset requirements. The proposed amendment to Chapter 101 updates definitions 

### in order to refiect standards from recent federal court decisions that affect the ozone standards, thresholds, and emission offset requirements found in the proposed changes 

### to the companion rulemaking for Chapter 116. The amendment is administrative in nature and does not impose any new costs or generate cost savings. Large businesses that own or operate major emission sources are not expected to experience any fiscal implications as a result of the proposed amendment to Chapter 101. SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

### No adverse fiscal implications are anticipated for small or mi· cro·businesses as a result ofthe proposed rule, which is admin-- istrative in nature. Small or micro-businesses do not typically own or operate facilities that meet the criteria for major emission sources. SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS 

### The commission has reviewed this proposed rulemaking and determined that a small business regulatoryflexibility analysis is not 

### required because the proposed rule is required 

### to protect the en· vironment and comply with federal regulations. In addition, the 

### proposed rule is not expected to adversely affect a small or micro-business in a material way for the first five years that the proposed rule is in effect. LOCAL EMPLOYMENT IMPACT STATEMENT 

### The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a 

### local economy in a material way for the first five years that the proposed rule is in effect. DRAFT REGULATORY IMPACT ANALYSIS The commission reviewed the proposed rulemaking in lightolthe 

### regulatory impact analysis requirements 

### of Texas Government Code, §2001.0225, and determined thatthe rulemaking does not 

### meet the definition of a major environmental rule as defined in that statute, and in addition, if 

### it did meet the definition, would not be subject to the requirement to prepare a regUlatory impact 

### analysis. A major environmental rule means a rule, the specific intent of which is to protect the environment or reduce risks 

### to human health from environmental exposure, and that may adversely af· fect in a material way the economy, a sector ofthe 

### economy, pro-- ductivity, competition, jobs, the environment, orthe public health and safety of the state or a sector of the state. The specific in

### tent of the proposed revisions are to add references to federal regulations in certain definitions that are duplicative with federal regulation that the state has no authority 

### to legally change, and 

### to correct an inadvertent omission in the definition of Reportable quantity. These changes will not adversely affect the economy, 

### a sector Or the economy, productivity, competition, jobs, the environment, orthe public health and safety ofthe state or a sector 

### ofthe state in a material way since they are administrative in nature. Additionally, even 

### if the rule met the definition of a major environmental rule, the rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a 

### major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Govemment Code, §2001.0225, 

### applies only 

### to a major environmental rule, the result 

### ofwhich is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express re

### quirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement 

### or contract between the state and an agency or representative of the federal govemment to implement a state and federal program; or 4) adopt a rule solely under the general powers of the 

### agency instead of under a specific state law. The proposed rule would implement requirements of the FCAA. Under 42 United States Code (USC), §7410, each state is reqUired to adopt and implement a SIP containing adequate pro

### visions to implement, attain, maintain and enforce the NAAOS within the state. While 42 USC, §7410 generally does not re

### quire specific programs, methods, or emission reductions in order 

### to meet the standard, state SIPs must include specific requirements as specified by 42 USC, §7410. The provisions of the FCAA recognize that states are in the best position to deter

### mine what programs and controls are necessary or appropriate in order to meet the NAAOS. This flexibility allows states, 

## at

## PROPOSED RULES August27, 

## 2010 35 

## TexReg 7677fected industry, and the pUblic, to collaborate on the best methods for attaining the NAAOS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of42 USC, §741 

### O. States are not free to ignore the requirements of 42 USC, §7410, and must develop programs to assure that their SIPS provide for implementation, attainment, maintenance. and enforcement of the NAAOS within the state. One of the requirements of 42 USC, §7410 is for states to revise their plans as necessary to take account revisions ofthe NAAOS. The proposed revisions 

### will align the state rules with federal requirements that the state has no authority to change. The requirement to provide a fiscal analysis of regulations in the Texas Govemment Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intentofSB 633 was to require agencies 

### to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse im

### pact and will exceed a requirement ofstate law, federal law, 

### or a delegated federal program, or are adopted solely underthe general powers of the agency. With the understanding that this re

### qUirement would seldom appty, the commission prOVided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill 

### will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would reqUire assessment under the pro-- visions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. Because of the ongoing need to meet federal requirements, the commission routinely proposes and adopts rules incorporating or designed to satisfy specificfederal requirements. The legislature is presumed to understand this federal scheme. If each rule proposed by the commission to meet a federal requirement was considered to be a major environmental rule that exceeds federallaw, then each ofthose rules would require the full regulatory impact analysis (RIA) contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the flscal impacts of the bills it passes, and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full RIA for rules that are extraordinary in nature. While the proposed rule may have a broad impact, that impact is no greater than is necessary or appropriate to rneet the reqUirements of the FCAA, and in fact creates no additional impacts since the proposed rule does not exceed the requirement to attain and maintain the NAAOS. For these reasons, the pro-- posed rulefalls under the exception in Texas Government Code, §2001.0225(a), because it is required by, and does not exceed, federal law. The commission has consistently applied this construction to 

### its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Governrnent Code, but left this provision substantially unamended. 

### It is presumed that "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." (Central Power& LightCo. v. Sharp, 919 S.W.2d



## 35 TexReg 7678 

## August27,2010 Texas Register 485, 489 (Tex. App. Austin 1995), wril denied with per curiam opinion respecting anotherissue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ). 

## cr. Humble Oil 

### & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mul. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); SOuthwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pel. denied); and Coastallndust. WaterAu/h. v. Trinity Portlend Cement Div., 563 S.W.2d 916 (Tex. 1978).) The commission's interpretation of the RIA reqUirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA reqUirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). The legislature specifically identified Texas Govemment Code, §2001.0225 as falling under this standard. 

### As discussed in this analysis and elsewhere in this preamble, the commission has SUbstantially complied with the requirements of Texas Govemment Code, §2001.0225. The proposed rule implements reqUirements of the FCAA, specifically 42 USC, §7410. The speciflc intent of the proposed revisions are to add references to federal regulations in certain definitions that are duplicative with fedaral regulation that the state has no authority to legally change, and to correct an inadvertent omission in the definition of Reportable quantity. The amendment was not developed solely under the general powers 

### of the agency, but are authorized by specific sections of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the STATUTORY AUTHORITY section of this proposal, including Texas Health and Safety Code, §§382.01', 382.012, and 382.017. Therefore, this proposed rulemaking action is not SUbject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b). Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble. TAKINGS IMPACT ASSESSMENT Under Texas Government Code, §2007.002(5), taking means a governmental acUon that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or §17 or§19, Article I, Texas Constitution; or a governmental action that affects an owner's private real property that is the SUbject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or Iimils the owner's right to the propertythat would otherwise exist in the absence 

### ofthe governmental action; and is the producing cause ofa reduction ofat least 25% in the market value of the affected private real property, determined by comparing the mari<et value of the property as if the governmental action is not in effect and the market value of the property determined as 

### ifthe govemmental action is in effect. The commission completed a takings impact analysis for the proposed rulemaking action under Texas Government Code, §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to add

### references to federal regulations in certain definitions that are duplicative with federal regulation that the state has no authority 

### to legally change, and to correct an inadvertent omission in the definition of reportable quantity. The proposed rule will 

### not create any additional burden on private real property. The proposed nile will not affect private real property in a manner that would require compensation to private real property owners under the Unlled States Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property 

### that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Govemment Code, Chapter 2007. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

### The commission determined that this nllemaking action relates to an action or actions SUbject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), and commission rules in 30 TAC Chapter 281, Sub

### chapter B, concerning Consistency with the CMP. As 

### required by §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions 

### and Rules Subject to the CMP, commission niles governing air pollutant emissions must be consistent wllh the applicable goals 

### and policies ofthe 

### CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and determined that the action is consistent with the applicable CMP goals and 

### policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.120)). The proposed amendment replaces existing defini

### tions with references to federal regulations that the state has no authority to change and correct an inadvertent omission in the definllion of reportable quantity. The CMP policy applicable to 

### this nllemaking action is the policy that commission niles comply with federal regulations in 40 CFR, to protect and enhance air quality in the coastal areas (31 TAC §501.14(q)). Therefore, in accordance wllh 31 TAC §505.22(e), the commission affirms thatthis rulamaking action is consistantwith CMP goals and poli

### cies. Written comments' on the consistency ofthe proposed rulemaking may ba submitted to the contact person at the address listed

. under the SUBMITTAL OF COMMENTS section of this preamble. EFFECTON SITES SUBJECTTO THE FEDERAL OPERATING PERMITS PROGRAM Chapter 101, Subchapter A is an applicable requirement of 30 TAC Chapter 122, Federal Operating Permits Program, in that 

### the definitions in SUbchapter A are relevant in defining and understanding other applicable requirements and applicability generally. Ifthe proposed rule is adopted, owners or operators subjectto the federal operating permit program must, consistentwith the revision process in Chapter 122, upon the effective data of the adopted rulemaking, revise their operating permit to include 

### any new requirements oraddress applicability related to the new Chapter 101 requirements. ANNOUNCEMENT OF HEARING The commission will hold a public hearing on this proposal in Austin on September20, 2010, at 2:00 p.m. in Building E, Room 201 S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured forthe receipt oforal or writ

### ten comments by interested persons. Individuals may present oral statements when callad upon in order of registration. Open 

### discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the pro

### posal 30 minutes prior to the hearing. Persons who have special communication orother accommodation needswho are planning to attend the hearing should contact Charlotte Hom, Office of Lagal Services at (512) 239-0779. Re

### quests should be made as far in advance as possible. SUBMITTAL OF COMMENTS Writtan comments may ba submittad to Devon Ryan, MC 

### 205, Office 

### of Legal SeNices, Texas Commission on Environmental Quailly, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic commants may be submitted at: http://www5.tceq.state.tx.uslruleslecommentsl. 

### File size restrictions may apply to comments being submitted vie the eComments system. All comments should reference Rule Project Number 200a-030-116-PR. The comment period closes September 27, 2010. Copies of the proposed rule

### making can be obtained from the commission's Web site at http://www.tceq.state.tx.uslnavlruleslpropose_adopt.html. For further information, please contact Blake Stewart, Air Permits Division, (512) 239-6931. STATUTORY AUTHORITY The amendment is proposed under Texas Water Code, §5.102, conceming General Powers; §5.103, conceming Rules; and §5.105 conceming General Policy, which authorize the com

### mission 

### to adopt niles as necessary to carry out 

### its power and duties under the Texas Water Code and under Texas Health and Safety Code, Taxas Clean Air Act (TCAA), §382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.011, 

### concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air, and §382.012, concaming State Air Control Plan, which authorizes 

### the commission to prepare and develop a comprehensive plan for the proper control of the stata's air. The proposed amendment implements Texas Water Code, §5.103; and Texas Health and Safety Code, §382.017 and §382.012. 

### §101.1. Definition.s. 

### Unless specifically defined in the Texas Clean Air Act (TCAA) or in 

### the rules ofthe commission., the tenns used by the commission have the meanings commonly ascribed to 

### them in the field ofair pollution control. 

### In addition to 

### the tenns that are defined by the TCAA. the following terms, when used in the airqualityrules in this tide, have the following meanings, unless the context clearly indicates otherwise. (1) 

### Account--For those sources required to be 

### permitted under Chapter 122 ofthis title (relating to 

### Federal Operating Pennits Program), allsources thatare aggregatedas asite. Forall othersources, 

### any combination ofsources under common ownership or control and located on one or more contiguous properties, or properties contiguous except for intervening roads, railroads, rights-of-way, waterways, or similar divisions.



## PROPOSED RULES August27,2010 

## 35 TexReg 7679(2) Acid gas flare--A flare used exclusively for the incineration ofbydrogen sulfide and other acidic gilSes derived from natural gas sweetening processes. (3) Agency established facility identification number--For the purposes of Subchapter F of tbis chapter (relating to Emissions Events and Scheduled Maintenance. Startup, and Shutdown Activities), 

### aunique alphanumeric code required to be assignedby the owner or operator ofa regulated entity that the emission inventory reporting requirements of§101.10 ofthis title (relating to Emissions Inventory Requirements) are applicable to each facility at tbat regulated entity. (4) Ambient air-That portion ofthe atmosphere, external to buildings, to which the generalpublic has access. (5) Background--Background concentration, the level of air contaminants that cannot

### be reduced by controlling emissions from man-made sources. It is determinedby measuring levels in non-urban 

### areas.

. (6) Boiler-Any combustion equipment fired with solid, liquid. and/or gaseous fuel used to produce steam or to heat water. (7) Capture system--All equipment(including, butnot limited to, hoods, ducts, fans, bootbs. ovens, dryers. etc.) that contains, collects, and transports an air pollutant to a control device. (8) Captured facilityM·A manufacturing orproductionfacility that generates an industrial solid waste or hazardous waste that is routinely stored, proeessed, or disposed ofon a shared basis in an integrated waste management unit owned, operatedby, and located within a contiguous manufacturing complex. (9) Carbon adsorber--An add-on control device that uses activated carbon to adsorb volatile organic compounds from a gas stream. (10) Carbon adsorption system-A carbon adsorber with an inlet and outlet for exhaust gases and a system to regenerate the saturated adsorbent.. (11) Coating-A material applied onto or impregnated into a substrate for protective, decorative, orfunctional purposes. Suchmaterials include, but are not limited to. paints, varnishes, sealants, adhesives, thinners, diluents, inks, maskants, and temporary protective coatings. (12) Cold solvent cleaning--A batch process that uses liquid solvent to remove soils from the surfaces of

### parts orto dry the 

### parts by spraying, brusbing, flusbing, andlor immersion while maintaining the solvent below its boiling point. Wipe cleaning (hand cleaning) is not included in this definition. (13) Combustionunit--Any boilerplant, furnace, incinerator. flare. engine. orotherdevice or system usedto oxidize solid.. liquid, or gaseous fuels, but excluding motors and engines used in propelling land, water, and air vehicles. (14) Combustion turbine·-Any gas turbine system that is gas andlor liquid fuel fired with or without power augmentation. This unit is eitherattaehcdto a foundation oris portableequipment operated at a specific minor or major source for more than 90 days in any 12- month period. Two or more 

### gas turbines powering one shaft will be treated as one unit. (IS) Commercial hazardous waste management facility--AnY hazardous waste management facility that aecepts hazardous waste or polychlorinated biphenyl compounds for a charge, except a capturedfacility thatdisposes only waste generated on-site or a facility that accepts waste only from other facilities owned or effectively controlled by the same person.



## 35 TexReg 7680 August27,2010 Texas Register (16) Commercial incinerator--An incinerator used to dispose ofwaste material from retail and wholesale trade establishments. (17) Commercial medical wasteincinerator--A facility that accepts for incineration medical waste generated outside the property boundaries ofthe facility. (18) Component--A piece ofequipment, including, butnot limited 

### to. pwnps, valves. compressors, and pressure reliefvalves that has the potential to leak volatile organic compounds. (19) Condensate--Liquids that result from the cooling andlor pressure changes ofproduced natural gas. Once these liquids are processed at gas plants or refineries or in any other manner, they are no longer considered condensates. (20) Construction-demolition waste--Waste resulting from construction or demolition projects. (21) Control system or control device--Any part. chemical, machine, equipment, contrivance, or combination of

### same, used to destroy, eliminate, reduce, or control the emission ofair contaminants to the atmosphere. (22) Conveyorized degreasing--A solventcleaningprocess that uses an automated parts handling system, typically a conveyor, to automatically provide a continuous supply of parts to be cleaned or dried using either cold solvent 

### or vaporized solvent.. 

### A conveyorized degreasing process is fully enclosed except for the conveyor inlet and exit portals. (23) Criteria pollutant or standard--Any pollutant for which there is a national ambient airquality standard established under 40 Code ofFederal Regulations Part 50. (24) Custody transfer--The transfer ofproduced crude oil andlorcondensate. afterprocessing andlortreating intheproducing operations, from storage tanks orautomatic transfer facilities to pipelines or any other fonns oftransportation. (25) De minimis impacl--A change in ground level concentration of an air contaminant as a result ofthe operation ofany new major stationary source or ofthe operation ofany existing source that has undergone a majormodification thatdoes not exceedthe following specified amounts. Figure: 30 TAC §101.l(25) (No change.) (26) Domestic wastes--The garbage and rubbish nonnally resulting from the functions oflife within a residence. (27) Emissions banking-MA systemfor recording emissions reduction credits so they may be used ortransferred for future use. (28) Emissions event--Any upset event or unscheduled maintenance, startup, or shutdown activity, from a common cause that results in unauthorized emissions of air eontaminants from one or more emissions points at a regulated entity. (29) Emissions reduction credit--Any stationary source emissions reduction that has been banked in accordance with Chapter 101, Subchapter H. Division I ofthis title (relating to Emission Credit Banking and Trading). (30) Emissions reduction credit eertificale-The certifieate issued by the executive director that indicates the amount ofqualified reduction available for use as offsets 

### and the length oftime the reduction is eligible for use. (31) Emissions unit--Any part ofa stationary source that" emits, or would have the potential to emit, any pollutant subject to regulation under the Federal Clean Air Act..(32) Excess opacity event--When an opacity reading is equal to or exceeds 15 additional percentage points above an applicable opacity limit, averaged over a six-minute period. (33) Exempt solvent·-Those carbon compounds or mixtures ofcarbon compounds used as solvents that have been excluded from the definition ofvolatile organic compound. (34) External floating roof--A cover or roofin an open top tank that rests upon or is floated upon the liquid being contained and is equipped with a single or double seal to close the space between the roofedge and tank shell. A double seal consists of two complete and separate closure seals, one above thc other, containing an enclosed space between them. (35) Federal motor vehicle regulation--Control ofAirPollution from Motor Vehicles and Motor Vehicle Engines, 40 Code of Federal Regulations Part 85. (36) Federally enforceable--All limitations and conditions that are enforceable 

### by the United States Environmental Protection Agency administrator, including those requirements developed under 40 Code ofFederal Regulations (CFR) Parts 60 and 61; requirements within any applicable state implementation plan (SIP); and any permit requirements established under 40 CFR §52.21 or under regulations approved under 40 CFR Part 51, Subpart 1, including operating permits issued under the approved program that is incorporated into the SIP and that expressly requires adherence to any pennit issued under sueh program. (37) Flare--An open combustion unit (i.e., lacking an enclosed combustion chamber) whose combustion air is provided by uncontrolled ambient air around the flame, and that is used as a control device. A flare may be equipped with a radiant heat shield (with or without a refractory I ning), but is not equipped with a flame air control damping system to control the air/fuel mixture. In addition, aflare may also use auxiliary fuel. The combustionflame may be elevated or at ground level. A vapor combustor, as defined in this section, is not considered a flarc. (38) Fuel oil--Any oil meeting the American Society for Testing and Materials (ASTM) specifications for fuel oil in ASTM D396-01, Standard Specifications for Fuel Oils, revised 2001. This includes fuel oil grades I, I (Low Sulfur), 2, 2 (Low Sulfur), 4 (Light), 4, 5 (Light), 5 (Heavy), and 6. (39) Fugitive emission-Any gaseous or particulate contaminant entering the atmosphere that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening designed to direct or control 

### its flow. (40) Garbage--Solidwaste consisting ofputrescible animal and vegetable waste materials resulting from the handling, preparation, cooking, andconsumptionoffood, includingwastematerials from markets. storage facilities. and handling and sale ofproduce and other food products. (41) Gasoline--Any petroleum distillate having a Reid vaporpressureoffourpounds persquare inch(27.6 kilopascals) orgreater that is produced for use as a motor fuel, and is commonly called gasoline. (42) Hazardous wastes--Any solidwaste identifiedorlisted as ahazardous wastebythe administratorofthe United StatesEnvironmental Protection Agency under the federal Solid Waste Disposal Act, as amended by Resource Conservation and Recovery Act, 42 United States Code, §§690l et seq., as amended. (43) Heatset(used inoffsetlithographicprinting)--Any operationwhere heatis required to evaporateinkoil from the printing ink. Hot air dryers are used to deliver the heat. (44) High-bake coatings-.Coatings designed 

### to cure at temperatures above 194 degrees Fahrenheit. (45) High-volume low-pressure spray guns--Equipment used to apply coatings by means ofa spray gun that operates between 0.1 and 10.0 pounds per square inch gauge air pressure measured at the air cap. (46) Incinerator--An cnclosed combustion apparatus 

### and attachments that is used in the process ofburning wastes for tbe primary purpose ofreducing its volume and weight by removing the combustibles ofthe waste and is equipped with aflue for conducting products ofcombustion to the atmosphere. Any combustion device that bums 10% or more ofsolid waste on a total British thennal unit (Btu) heat input basis averaged over anyone-hour period is considered to be an incincrator. A combustion device without instrumentation or methodology to detennine hourly flow rates ofsolid waste and bwning 1.0% or more ofsolid waste on a total Btu heat input basis averaged annually is also considered to be an incinerator. An open-trench type (with closed ends) combustion unit may be considered an incinerator when approved by the executive director. Devices burning untreated wood scraps, waste wood, or sludge from the treatment ofwastewater from the process mills as a primary fuel for heat recovery are not included underthis definition. Combustion devices pennitted under this title as combustion devices other than incinerators will not be considered incinerators for application ofany rule within this title provided they are installed and operated in compliance with the condition ofall applicablc pennits. (47) Industrial boiler--A boiler located on the site ofa facility engaged in a manufacturing process where substances are transfonned into new products, including the component parts ofproducts, by mechanical or chemical processes. (48) Industrial furnace--Cement kilns; lime kilns; aggregate kilns; phosphate kilns; coke ovens; blast fwnaces; smelting. melting, Or refining furnaces, including pyrometallurgical devices such as cupolas. reverberator furnaces, sintering machines, roasters, or foundry furnaces; titanium dioxide chloride process oxidation reactors; methane refonning furnaces; pulping recovery fwnaces; combustion devices used in the recovery ofsulfur values from spent sulfuric acid; and other devices the commission may list. (49) Industrial solid waste--Solid waste resulting from, or incidental to, any process ofindustry or manufacturing, or mining or agricultural operations, classified as follows. (A) Class 1 industrial solidwaste orClass 1wasteis any industrial solid waste designated as Class 1 by the executive director as any industrial solid waste or mixture ofindustrial solid wastes that because ofits concentration or physical or chemical characteristics is toxic, corrosive, flammablc, a strong sensitizer or irritant. a generator ofsudden pressure by decomposition, heat, or other means, and may pose a substantial present or potential danger to human health or the environment when improperly processed, stored, transported, or otherwise managed, including hazardous industrial waste, as defined in §335.1 and §335.505 ofthis title {relating to Definitions and Class I Waste Detennination). (8) Class 2 industrial solidwaste is any individual solid waste orcombinationofindustrial solidwastes thatcannotbe described as Class 1 or Class 3, as defined in §335.506 ofthis title (relating to Class 2 Waste Determination).



## PROPOSED RULES August 27, 

## 2010 35 

## TexReg 7681(C) Class 3 industrial solidwaste is any inert and essentially insoluble industrial solid waste, includingmaterials such as rock, brick, glass, dirt, and certain plastics and rubber, etc., that are not readily decomposable as defined in §335.507 ofthis title (relating to Class 3 Waste Detennination). (50) Intemal floating cover-A cover or floating roofin a fixed rooftank that rests upon 

### or is floated upon the liquid being contained, and is equipped with a closure seal 

### or seals to close the space between the eover edge and tank shell. (51) Leak--A volatile organic compound coneentration greater than 10,000 parts per million by volume or the amount specified 

### by applicable rule. whichever is lower; or the dripping or exuding ofprocess fluid based on Sight, smell, 

### or sound. (52) Liquid fuel--A liquid combustible mixture, not derived from hazardous waste, with a heating value of at least 5,000 British thennal units per pound. (53) Liquid-mounted seal--Aprimary seal mounted incontinuous contact with the liquid between the tank wall and the floating roofaround the circumference ofthe 

### tank. (54) Maintenance area--A geographic region of the state previously designated nonattainment under the Fedeml Clean Air Act Amendments of1990and subsequentlyredesignated to attainmentsubject to the requirement to develop a maintenance plan under 42 United States Code. §7505a. 

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### I'fBIlCl'IY

## Ii-.t (55) Maintenance plan--A revision to the applicable state implementation plan, meeting the requirements of42 United States Code, §7505a. (56) Marine vessel--Any watercmftused, 

### or capable ofbeing used, as a means oftransportation on water, and that is constructed or adapted to earry, or that carries, oil, gasoline, or other volatile organic liquid in bulk as a cargo or cargo residue. (57) Mechanical shoe seal--A metal sbeet thatis held vertieally against the storage tank wall by springs or weighted levers and is connectedbybraces to thefloating roof. Aflexible coatedfabric (envelope) spans the annular space between the metal sheet and the floating roof. (58) Medical waste-Waste materials identified by the DepartmentofStateHealth Services as "specialwaste fromhealth care-related facilities" and those waste materials commingled and discarded with special waste from health care-related facilities. (59) Metropolitan Planning Organization--That organization designated as being responsible. together with the state, for conducting the continuing, coopemtive, and comprehensive planning process under 23 United States Code (USC), §134 end 49 USC, §1607.



## 35 TexReg 7682 

## August27,2010 Texas Register (60) Mobile emissions reduction credit--The credit obtained from an enforceable, pennanent, quantifiable, and surplus (to other federal and state rules) emissions reduction generated by a mobile source as set forth in Chapter 114, Subchapter F of this title (relating to Vehicle Retirement and Mobile Emission Reduction Credits), and that has been banked in accordance with Subchapter H, Division I ofthis chapter. (61) Motor vehicle--A self-propelled vehicle designed for transporting persons or property on a street or highway. (62) Motorvehicle fuel dispensingfacility--Any sitewhere gasoline is dispensed to motor vehicle fuel tanks from stationary storage tanks.(63) Municipal solid waste-Solid waste resulting from, or incidental to, municipal, community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes. street cleanM ings, dead animals, abandoned automobiles, and all other solid waste excepl industrial solid waste. (64) Municipal solid waste facility--All contiguous land, structures, other appurtenances, and improvements on the land used for processing. storing, or disposing of solid waste. A facility may be publicly or privately owned and may consist ofseveml processing, storage, or disposal operational units, e.g., one or more landfills. surface impoundments, or combinations ofthem. (65) Municipal solidwaste landfill-A discrete areaofland or an excavation that receives household waste and that is not a land application unit, surface impoundment, injectionwell, orwaste pile, 

### as those tenns are defined under 40 Code ofFedeml Regulations §257.2. A municipal solid waste landfill (MSWLF) unit also may receivc other types ofResource Conservation and Recovery Act Subtitle D wastes, such as commercial solid waste, nonhazardous sludge. conditionally exempt small-quantity genemtor waste, and industrial solid waste
. Such a landfill may be publicly or privately owned. An MSWLF unit may 

### be a new MSWLF unit, 

### an existing MSWLF unit, or a lateml expWlSion. (66) National ambient air quality standard--Those stan

### dards established under 42 United States Code, §7409, including standards for carbon monoxide, lead, nitrogen dioxide, ozone, inhalable particulate matter, and sulfur dioxide. (67) Net ground-level concentration--The concentration of an air contaminant as measurcd at or beyond the property boundary minus therepresentative concentration flowing onto aproperty as measured at any point. Where there is no expected influence ofthe air contaminant flowing onto a property from other sources, the net ground level concentration may be determinedby a measurementatorbeyond the property boundary. (68) New source-Any stationary source, the construction 

### or modification ofwhich was commenced after March 5, 1972. (69) Nitrogen oxides (NO,c>--The sum ofthe nitric oxide and nitrogen dioxide in the flue gas or emission point, collectiveJy 

### expressed as nitrogen dioxide. (70) Nonattainment area-A defined region within the state that is designated by the United States Environmental Protection Agency (EPA) as failing to meet the national ambient air quality standard (NAAQS or ,tandard) for a pollutant for which a ,tandard exists. The EPA will designate the area as nonattainment under the provisions of42 United States Codc, §7407(d). For the official list and boundaries ofnonattainment areas, see 40 Code ofFederal Regulations (CFR) Part 81 and pertinent Federal Regisler**[~]** notices. The designations and classifications for the one-hour ozone NAAOSin 40 CFR Part 81 were retained for the purpose ofanti-backsliding and upon detennination by the 

### EPA that any requirement is no longer required to prevent anti-backsliding. then that requirement no longer applies. 

### [+he relle'Niag ilre&S- eempAsethe fteftattaiament iIfe8S-wftI:tffi the

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### t:J:te SelHhem: PeeHie &ailfaIKlliflesirerftRe)'ft.ld, _Ia IIigbno, ibl,Higb".l (j;!irerftlhe SellUleFB Paeifie &aifl:eeElliftes. te 

### Highway -&ftd 

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### l'eJUl:S Menciee

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### Classified 85- 

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### t:J:te Bl PIl9& eHyflmi.t. 'eelHtdaFies 65"they

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### aesigluHed ftBBattainmeftt aFeBS:} f{I)1 l'litFegen N& 

### aesigHated nooattainmeBt 

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# e.- ( ••e b.er).] 

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### efte heUf ezene. 

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### Classified itS 

### tl- Severe 

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### BmzeAa, QUNeluws, Felt Bead;- 

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### BlPll9&elle**heklf~fl6ft&tt8:iRmeftl.Me&f!6 -FRo~-** **Classified85-a-8erieus~Bell&ttaiBfllent6feB:"** CoosistsefElPesa 

### C""!l'.] 

### ff#if Be&\tlft:Bftt PeR AFtltuF (BPA) eRe 

### heH:! aealHtair-meB:t iIf'e& t@ FR

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### CIBBsified iI5 

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### f(i}- HGB eight 

### hetH' -eame 

### neBattainmeBt Me& t@ -FR-**~-** 

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### lleftattaiameBt

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### BmzeAa, ChamBefS. Bend, 

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### Melltgemef), eftEi Wallet 

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### Classifiedil5a 'MargittaI fteftattainmellt ilfeir. 

## .can-

..... efHordift, 

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### ff#if Dallas Fe:FtWeFtlteight he\:lf'626fteRBRsttsill fIleIttilf'e&t@ 

### FR:

- Classifiedas tl- l'

### federate Ilellattaill fIleItt are&-;- efGellift; Dallas, I:le!IIaft, 

### Ems;- Jehnsen; Kat!f- 

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### -8aR- AfilaIlie 

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_ 

### 8eoftAff Ael, 'I'i**t1el,Partll,SebJ'llfl+f4Hj,,;.ed_Eede,~**

### ••ft_","eat deferred '"**Se~lember** '>ll; 

### eoas e"leaded by

## EPA.t HG1 St:MlH- N& desigeated Beftattaillffient 

### ar- (71) Non-reportable emissions event--Any emissions event that in any 24-hour period does not result in an unauthorized emission from any emissions point equal to or in excess of the reportable quantity as defined in this section. (72) Opacity--The degree to which an emission ofair contaminants obstructs the transmission oflight expressed as the percentage oflight obstructed as measured by an optical instrument or trained observer. (73) Open-top vapor degreasing--A batch solvent cleaning process that is open to the air and that uses boiling solvent to create solvent vapor used to clean or dry parts through condensation ofthe hot solvent vapors on the parts
. (74) Outdoor burning-Any fire or smoke-producing process that is not conducted in a combustion unit. (75) Particulate matter--Any material, except uncombined water, thatexists as a solidorliquid inthe atmosphere orin a gas stream at standard conditions. (76) Particulate matter emissions--A1L finely-divided solid or liquid material, otherthan uncombinedwater, emitted to the ambient air as measured by United States Environmental Protection Agency Reference Method 5, as specified at 40 Code ofFederal Regulations (CFR) Part 60. Appendix A. modified to include particulate caught by an impinger train; by an eqUivalent or alternative method, as specified at 40 CFR Part 51; or by a test method specified in 

### an approved state implementation plan. (77) Petroleum refinery--Any facility engaged in producing ga..o;;oline, kerosene. distillate fuel oils, residual fuel oils, lubricants, or other products through distillation ofcrude oil. orthrough the redistillation. cracking, extraction, refornting, or other processing ofunfinished petroleum derivatives. (78) PM1a--Particulate matter with an aerodynamic diameter less than or equal to a nominal ten mierometers as measured by a 

### referencemethod based 

### on40 

### Code ofFederal Regulation, (CFR) Part 50, Appendix 

### J, and designated in accordanee with 40 CFR Part 53, or by an equivalent method deSignated with that Part 53. (79) PM 10 emissions--Finely-divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal ten micrometers emitted to the ambient air as measured by an applicable reference method, or an equivalent or alternative method specified in 40 Code ofFederal Regulations Part 51, or by a test method specified in an approved state implementation plan. (80) Polychlorinated biphenyl compound-A compound subject to 40 Code ofFederal Regulations Part 761. (81) Process or processes-Any action, operation, or treatment embracing chemical, conunercial, industrial, or manufacturing factors such as combustion units, kilns, stills, dryers, roasters, and equipmentusedin connectiontherewith, and all othermethods or fonns ofmanufacturing or processing that may emit smoke, particulate matter. gaseous matter, or visible emissions. (82) Process weight per hour-"Process weight" is the total weight ofall materials introduced or recirculated into any specific process that may cause any discharge ofair contaminants into the at

## PROPOSED RULES August27,2010 

## 35 TexReg 7683mosphere. Solid fuels charged into the process will be considered as partofthe process weight, but liquid and gaseous fuels and combustion air will not. The "process weight per hour" will be derived by dividing the total process weight by the number ofhours in one complete operation from the beginning ofany given process to the completion thereof, excluding any time during that the equipment used to conduct the process is idle. For continuous operation, the "process weight per hour" will be derivedbydividing the total process weight for a 24-hour period by 24. (83) Property--All land under cornmon control or ownership coupled with all improvements 00 such land, and all fixed ormovable objects on such land, or any vessel on the waters ofthis state. (84) Reasonable further progTess-Anoual incremental reductions in emissions ofthe applicable air eontaminant that are sufficient to provide for attainment ofthe applicable national ambient air quality standard in the designated nonattainrnent areas by the date required in the state implementation plan. (85) Regulated entity--All regulatedunits, facilities, equipment, structures, or sources at one street address or location 

### that are owned or operated by the same person. The tenn includes any property under common ownership or conlrol identified in a permit orused in conjunction with the regulated activity at the same street address or location. Owners or operators ofpipelines, gathering lines, and flowlines under common ownership or conlrol in a particular county may be treated as a single regulated entity for purposes ofassessment and regulation ofemissions events. (86) Remote reservoircold solventcleaning--Any cold solventcleaning operation in which liquid solventis pwnped to asink-like work area that drains solvent back into an enclosed container while parts are being cleaned. allowing no soTvent to pool in the workarea. (87) Reportable emissions event--Any emissions eventthat in any 24-hour period, results in an unauthorized emission from any emissions point equal to or in excess ofthe reportable quantity as defined 

### in this section. (88) Reportable quantity (RQ)-Is as follows: (A) for individual air contaminant compounds and specifically listed mixtures by name or Chemical Abstracts Service (CAS) number, either: 

## OJ the lowest ofthe quantities: (1) listed 

### in 40 Code of Federal Regulations (CPR) Part 302, Table 302.4, the column "final RQ"; (11) listed in 40 CFR Part 355, Appendix A, the column "Reportable Quantity"; or (111) listed as follows: (-a-) acelaldehyde

- 1,000 pounds, except in the Houston-Galveston-Brazoria (HOB) and Beaumont-Port Arthur (BPA) ozone nonattainrnent areas as defined 

### in paragraph 

### 1.7.Ql [(70lfE)(il ilIMlfHill ofthis section, where the RQ must be 100pounds; (-b-) bulanes (any isomer)

- 5,000 pounds; (-c-) butenes (any isomer, except 1,3-butadiene) - 5,000 pounds. exceptin the HOB and BPA ozone nonattainment areas as defined 

### in paragrapb 

### QQl [(70lfE)(il-fHill ofthis section, where the RQ must be 100 pounds; (-d-) carbon monoxide - 5,000 pounds: (-e-) I-chloro-I,l-difluoroethane (HCFC142b)

- 5,000 pounds; (-f-) chlorodifluoromethane (HCFC-22)

- 5,000 pounds;



## 35 TexReg 7684 

## August27,2010 Texas Register (-g-) I-chloro-l-fluoroethane (HCFC-15Ia)- 5,000 pounds; (-h-) chlorofluoromethane (HCFC-31) 5,000 pounds; (-i-) chlornpentafluoroethane (CFC-1I5) 5,000 pounds; 

### (-j-) 2-ehloro-l,I,I**,2~tetrafluoroethane** (HCFC-124)

- 5.000 pounds; (-k-) l-chloro-l,1,2,2 tetrafluoroethane (HCFC-124a)

- 5.000 pounds; (-1-) 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-1Ornee)

- 5.000 pounds; (-m-) decanes (any isomer) - 5,000 pounds; (-n-) I,I-dichloro-l-fiuoroethane (HCFCl4lb)

- 5,000 pounds; (-0-) 3,3-dkhloro-l,l,2,2-pentafluoropropane (HCFC-225ca)

- 5,000 pounds; (-p-) I,3-dichloro-l,I,2,2.3-pentafluoropropane (HCFC-225eb)

- 5,000 pounds; (-q-) I,2-dichloro-l,I,2,2-tetmfluoroethane (CFR-1l4)

- 5,000 pounds; (-r-) 1,I-dicblorotetrafluoroethane (CFC114a)

- 5,000 pounds; (-s-) I,2-dichloro-1,I,2-trifiuoroethane (HCFC-123a)

- 5,000 pounds; (-1-) 1,I-difluoroethane (HFC-152a)

- 5,000 pounds; (-u-) difluoromethane (HFC-32)

- 5,000 pounds; (-v-) ethanol

- 5,000 pounds; (-w-) ethylene - 5,000 pounds, except in the HOB and BPA ozone nonattainrnent areas as definedin paragraph

### QQl [(70l(El(i) ilIMl 

### (Hij] ofthis section, where the RQ musthe 100pounds; (-x-) ethylfluoride (HFC-16I) 5,000 pounds; (-y-) 1,1,1,2,3,3,3-heptafluoropropane (HFC-227ea)

- 5,000 pounds; (-2-) 1,1,1,3,3,3-hexalluoropropane (HFC236fa)

- 5,000 pounds; (-aa-) 1,1,I,2,3,3-hexafiuoropropane (HFC-236ea)

- 5,000 pounds; (-bb-) hexanes (any isomer)

- 5,000 pounds; (-cc-) isopropyl alcohol

- 5,000 pounds; (-dd-) mineral spirits

- 5,000 pounds; (-eo-) oclanes (any isomer)

- 5,000 pounds; (-ff-) oxides of nilrogen - 200 pounds in ozone nonattaimnent. ozone maintenance, early action compact areas, Nueces County, and San Patricio County, 

### and 5,000 pounds in all other areas ofthe state, which should be used instead ofthe RQs for nitrogen oxide and nitrogen dioxide provided 

### in 40 CFR Part 302, Table 302.4, the column 

### "final RQ";

. (-gg-) pemachlorofluoroethane (CFR-llI)

- 5,000 pounds; (-hh-) 1,1,1 ,3,3-pentafluorobulane (HFC365mfc)

- 5,000 pounds; (-ii-) peotafluoroethane (HFC-125)

- 5,000 pounds; (-ii-) 1,1,2,2,3-pentafluoroprnpane (HFC245ca)

- 5,000 pounds;(-kk-) 1,1,2,3,3-pentafluoropropane (HFC245ea)

- 5,000 pounds;(-Il-) 1,1.1 ,2,3-penlafluoropropane (HFC245eb)

- 5,000 pounds;(-mm-) l, 1,I ,3,3-pentafluoropropane (HFC-245fa)

- 5,000 pounds; (-nn-) pentanes (any isomer)

- 5,000 pounds; (-00-) propane - 5,000 pounds; (-pp-) propylene
w 5,000pounds, exceptinthe HGB and BPA ozone nonattainment areas as defined in paragraph QQ} [(79)fE)(i)

### -ffflll ofthis section, where the RQ mustbe 100 pounds; (-qq-) 1,1.2,2-terachlorodiftuoroethane (CFR -112)

- 5,000 pounds; (-IT-) 1,1,1 ,2-tetrachlorodifluoroethane (CFC-112a)

- 5,000 pounds; (-ss-) I,I,2,2-tetraftuoroethane (HFC-l34)

- 5,000 pounds; (-tt-) 1,1,1,2-tetraftuoroethane (HFC-l34a)

- 5,000 pounds; (-uu-) I, I ,2-trichloro-l,2,2-triftuoroethane (CFR-Il3)

- 5,000 pounds; (-vv-) 1,1 ,1-trichloro-2,2,2-trilfloroethane (CFC-Il3a)

- 5,000 pounds; (-ww-) I, I,I-trifluoro-2,2-dichloroethane (HCFC-123)

- 5,000 pounds; (-xx-) 1,1,I-triftuoroethane (HFC-143a) 5,000 pounds; (-yy-) triftuoromethane (HFC-23)

- 5,000 pounds; or (-zz-) toluene

- 1,000 pounds, except in the HGB and BPA ozone nonattainment areas as defined in paragraph QQ} [(79)(El(i) 

### -fffllJ ofthis section, where the RQ mustbe 100pounds; 

### Oi) ifnot listed in clause (i) of this subparagraph, 100 pounds; (B) for mixtures ofair contaminant compounds: 0) where the relative amount ofindividual air contaminant compounds is knO'WII throughcommonprocess knowledge or prior engineering analysis or testing, any amount ofan individual air contaminant compound that equals or exceeds the amount specified in subparagraph (A) ofthis paragraph; fii) where the relative amount ofindividual air contaminant compounds in subparagraph (A)(i) of this paragraph is not known, any amount ofthe mixture that equals or exceeds the amount for any single air contaminant compound that is present in the mixture and listed in subparagraph (A)(i) ofthis paragraph; (iii) where each of the individual air contaminant compounds listed in subparagraph (A)(i) ofthis paragraph are known to be less than 0.02% by weightofthe mixture, and eachofthe other individual air contaminant compounds covered by subparagraph (A)(ii) ofthis paragraph are known to be less than 2.0% by weight ofthe mixture, any total amount of the mixture ofair contaminant compounds greater than or equal to 5,000 pounds; or (tv) where natural gas excluding carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen or air emissions from crude oil are known to be in an amolmt greater 

### than or equal to 5,000 pounds or the associated hydrogen sulfide and mercaptans in a total amount greater than 100 pounds, whichever occurs first; (C) for opacity from boilers andcombustion turbines as defined in this section fueled by natural gas, coal, lignite, wood, fuel oil containing hazardous air pollutants at a concentration ofless than 0.02% by weight, opacity thal is equal to or exceeds 15 additional percentage points above the applicable limit, averaged over a six-minute period. Opacity is the only RQ applicable to boilers and combustion turbines described in this paragraph; or (D) for facilities where air contaminant compounds 

### are measured directly by a continuous emission monitoring system providing updated readings at a minimum IS-minute interval an amount, approved by the executive director based on any relevant conditions and a screening model. that would be reported prior to ground level concentrations reaching at any distance beyond the closest regulated entity property line: (i) less than one-halfofany applicable ambient air standards: and (if) less than two times the concentration ofapplicable air emission limitations. (89) Rubbish-Nonputrescible solid waste, consisting of both combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, and similar materials. Noncombustible rubbish includes glass, crockery, tin cans, aluminum cans, metal furniture, and like materials that will not bum at ordinary incinerator temperatures (1,600 degrees Fahrenheit to 1,800 degrees Fahrenheit). (90) Scheduled maintenance, startup, or shutdo'WII activity-For activities with unauthorized emissions thatare expectedto exceed a reportable quantity (RQ), a scheduled maintenanee, startup, or shutdown activity is an activity that the o'WIIer or operator of

### the regulated entity whether perfonning or otherwise affected by the activity, provides prior notice 

### and a final report as required by § 101.211 ofthis title (relating to Scheduled Maintenanee, Startup, and Shutdown Reporting and Recordkeeping Requirements); the notice or final report includes the infonnation required in §101.211 ofthis title; and the actual unauthorized emissions from the activity 

### do not exceed the emissions estimates submitted in the initial notification by more than an RQ. For activities with unauthorized emissions that are not expected to. and do not, exceed an RQ, a scheduled maintenance. startup. or shutdown activity is one that is recorded as required by §101.211 of this title. Expected excess opacity events as described in §101.201(e) ofthis title (relating to Emissions Event Reporting and Recordkeeping Requirements) resulting from scheduled maintenance, startup, or shutdown activities are those thatprovide priornotice (ifrequired), and are reeorded and reported as required by §101.2ll ofthis title. (91) Sludge-Any solid or semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatmentplant; water supplytreatmentplant, exclusiveofthe treated effluent from a wastewater treatment plant; or air pollution control equipment. (92) Smoke--Small gas-born particles resulting from incomplete combustion consisting predominately ofcarbon and other combustible material and present in sufficient quantity to be visible. (93) Solid waste--Garhage, rubbish, refuse, sludge from a waste water treatment plant, water supply treatment plant, or airpollution control equipment, and other discarded material, including solid, liquid, semisolid. or containerized gaseous material resulting from industrial, municipal, commereial, mining, and agricultural operations and from community and institutional activities. The tenn does not include: (A) solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial discharges subject to regulation by permit issued under the Texas Water Code, Chapter 26; (B) soil, dirt, rock, sand, andothernatural orman-made inert sol1d materials used to fill land, ifthe object ofthe fill is to make the land suitable for the construction ofsurface improvements; or



## PROPOSED RULES August

## 27, 2010 

## 35 TexReg 7685(C) waste materials that result from activities associated with the exploration, development, or production of oil or gas, or geothennal resources, and other substance or material regulated by the Railroad Commission of Texas Wlder Natural Resources Code, §91.10I, unless the waste, substance, or material results from activities associated with gasoline plants, natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants and is hazardous waste as defined by the administrator ofthe United States Environa mental Protection Agency Wlder the federal Solid Waste Disposal Act, as amended by Resource Conservation and Recovery Act, as amended (42 Uniled Slates Code, §§690l efseq.). (94) Sourcrude--A crude oil that will emita sourgas when in equilibrium at atmospheric pressure. (95) Sour**gas-~Any** natural gas containing more than 1.5 grains ofhydrogen sulfide per 100 cubic feet, or more than 30 grains oftotal sulfur per 100 cubic feet. (96) Souree-A pointof originofaircontaminants, whether privately or publicly owned or operated. Upon request of a source owner, the executive director shall detennine whether mUltiple processes emitting air contaminants from a single point ofemission will be treated as a single source or as multiple sources. (97) Special waste from health care-related facilities--A solidwaste that ifimproperlytreated orhandled, may serve to transmit infectious disease(s) and that is comprised of the following: animal waste, bulk blood and blood products, microbiological waste, pathological waste, and sharps. (98) Standard conditions--A condition at a temperature of 68 degrees Fahrenheit (20 degrees Centigrade) and a pressure of 14.7 pounds per square inch absolute (101.3 kiloPascals). (99) Standard metropolitan statistical area--An area consisting ofa county or one ormore contiguous counties that is officially so designated by the United States Bureau ofthe Budget. (100) Submergedfill pipe-Afill pipe thatexlends from the top ofatankto have amaximum clearance ofsix inches (15.2 centimeters) from the bottom or, when applied to a tank that is loaded from the side, that has a discharge opening entirely submerged when the pipe used to withdraw liquid from the tank can no longer withdraw liquid in nonnal operation. (101) Sulfur compounds-pAll inorganie or organic chemi· cals having an atom or atoms ofsulfur in their chemical structure. (102) Sulfuric acid mist/sulfuric acid--Emissions ofsulfuric acidmistand sulfuric acid are considered to bethe same aircontaminant calculated as HJ SO4 and must include sulfuric acid liquid mist. sulfur trioxide, and sulfuric acid vapor as measured by Test Method 8 in 40 Code ofFederal Regulations Part 60, Appendix A. (103) Sweet crude oil and gas--Those erude petroleum hydrocarbons that are not "sour" as defined in this section. (104) Total suspended particulate--Particulate matter as measured by the method described in 40 Code ofFederal Regulations Part 50, Appendix B. (105) Transfer efficiency-The amount of coating solids deposited onto the surface or a part ofproduct divided by the total amount ofcoating solids delivered to the coating application system. (I06) True vapor pressure--The absolute aggregate partial vapor pressure, measured in pOWlds per square inch absolute, of all volatile organic compounds at the temperature ofstorage, handling, or processing.



## 35 TexReg 7686 

## August27,2010 Texas Register (107) Unauthorized emissions--Emissions ofany air contaminant except carbon dioxide, water, nitrogen. methane. ethane, noblegases, hydrogen, andoxygenthatexceedany airemission limitation in a permit, rule, or order ofthe c.ommission or as authorized by Texas Clean Air Act, §382.0518(g). (108) Unplanned maintenance, startup, or shutdown activ**ity~-For** activities with unauthorized emissions that are expected to exceed a reportable quantity orwith excess opacity, an unplanned maintenance, startup, or shutdown activity is: (A) a startup or shutdown that was not part ofnormal or routine facility operations, is unpredictable as to timing, and is not the type ofevent nonnally authorized by permit; or (8) a maintenance activity that arises from sudden and unforeseeable events beyond the control ofthe operator that requires tbe immediate corrective action to minimize or avoid an upset or malfunction. (109) Upset event--An unplanned and unavoidable breakdown orexcursion ofaprocess Oroperationthatresults inunauthorized emissions. A maintenance, startup, or shutdown activity thal was reportedunder §I01.211 ofthis title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), but had emissions that exceeded the reported amount by more than a reportable quantity due to an unplanned and unavoidable breakdown or excursion ofa process or operation is an upset event. (110) Utility boiler--A boiler used 

### to produce electric power, steam, orheated or cooled air, or other gases or fluids for sale. (Ill) Vapor combustor-A partially enclosed combustion device used to destroy volatile organic compounds by smokeless combustion without extracting energy in the form ofprocess heat or steam. The combustion flame may be partially visible, but at no time does the device operate with an uncontrolled flame. Auxiliary fuel andlor a flame air control damping system thatcan operate at all times to control the air/fuel mixture to the combustor's flame zone, may be required to ensure smokeless combustion during operation. (112) Vapor-moWlted seal--A primary seal mounted so there is an annular space underneath the seal. The annular vapor space is boWlded by the bottom ofthe primary seal, the 

### tank. wall, the liquid surface, and the floating roofor cover. (113) Vent-Any duct, stack, chimney, flue, conduit, or other device used to conduct air contaminants into the atmosphere. (114) Visible emissions--Particulate or gaseous matter that can be detected by the human eye. The radiant energy from an open flame is not considered a visible emission under this definition. (115) Volatile organic compound-As defined in 40 Code of Federal Regulations §51.100(s), except §51.100(sX2)

- (4), as amended on November 29, 2004 (69 FR 69290). (116) Volatile organic compound (VOC) water separator-- Any tank, box, sump, or othercontainerinwhich any VOC, floating on orcontained inwater entering sucb tank., box, sump. orothercontainer. is physically separated and removed from such water prior to outfall, drainage, or recovery ofsuch water. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority 

### to adopt. Filed with the Office althe Secretary

### aI State on August 13, 2010. TRD-201004709

### Robert Martinez Director, Environmental Law Division Texas Commission on Environmental auality Earliest possible date of adoption: September 26, 2010 Forfurther infonnation, please call: (512) 239-6090 

# • • • CHAPTER 116. CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION ORMODIFICATION The Texas Commission on Environmental Quality (commission or TCEQ) proposes amendments to §116.12 and §116.150. The proposed amendments to §116.12 and §116.150 will be submitted to the United States Environmental Protection Agency (EPA) as revisions to the state implementation plan (SIP). BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES On July 18, 1997, the EPA revised the ozone National Ambient Air Quality Standard (NAAQS), promulgating an ozone standard of0.08 parts per million (ppm) measured overan eight-hour period (the eight-hour ozone NAAQS or standard) (62 Federal Register 38856, July 18, 1997). Different groups and states challenged the final eight-hour ozone NAAQS, end ultimately, the United States Supreme Court upheld the EPA's action setting the NAAQS, but found that the EPA had incorrectly implemented the eight-hour ozone NAAQS by classifying areaS only under Part D, Subpart 1 of the Federal Clean Air Act (FCAA) Amendments of 1990 and remanding other issues to the District of Columbia (D.C.) Circuit Court of Appeals (Whitman 

### v. American Trucking Assoc., 121 S.Ct. 903 (2001)). On March 26, 2002, the D.C. Circuil Court of Appeals rejected the other challenges 10 the eight-hour ozone NAAQS (American Trucking Assoc. 

### v. EPA, 283 F.3d355 (D.C. Cir. 2002)). The EPA then proposed and adopted implementation rules to implement the eight-hour ozone NAAQS, addressing transition issues from the 

### one-hour ozone NAAQS, the revocation of the one-hour ozone NAAQS, classification ofareas forthe eight-hour ozone NAAQS, and the specification of requirements relating to SIPs. EPA**fina~** ized designations for the 1997 eight-hour ozone NAAQS effective on June 15, 2004. FCAA, §1 07 requires the EPA to designate arees nonattainment 

### attainment, or unclassffiable no later than one year afterthe EPA promulgates a new or revised NAAQS. For the ozone NAAQS FCAA, §181 further requires that each area designated nonat:**ta,"~ent** shall be classified at the time of 

### Us designation, by operallon of law, in accordance with FCAA, §181, Table 1. FCAA, §181, Table 1 prescribes the area class (ranging from marginal to extreme), the design value range (measured in ppm and in mea

### surements relating to the one-hour ozone standard), and the primery standard attainment date (ranging from three years to 20 years after November 15, 1990, the effective date of the 1990 Amendments to the FCAA). Other specifics and exceptions are also provided in FCAA, §181. The classification scheme implemented by the United States Congress provided that areas with 

### design values doser to attaining the one-hour ozone standard would have less time 

### to attain the standard, and additional requirements of FCAA, Part D, Subpart 2 impose specific, more 

### stringent requirements on areas as the classifications increase from marginal to moderate (and the corresponding design values 

### are furtherfrom attainment of the one-hour ozone standard). The EPA rules implementing the 1997 eight-hourozone standard**~ere** adopted in two phases: the Phase I Rule, 69 Federat RegIster23951 , Apnl 30, 2004, addressed a number of implementation issues for the 1997 eight-hour ozone NAAQS, inclUding 

### how areas should be classified for the 1997 eight-hour ozone NAAQS (since the classification requirements of FCAA, §181 

### were based on the one-hour ozone standard, the EPA needed to propose and finalize a classification scheme appropriate for the. eight-hour ozone standard in accord with FCAA, §181), and 

### which one-hour OZone standard requirements should continue to apply under the 1997 eight-hour ozone NAAQS; and the Phase II Rule, 70 Federal Register71612, November 29, 2005, which 

### addressed additional requirements. In EPA's Phase I Rule, one of the issues that the EPA con

### sidered was the continued applicability of control requirements that applied in areas previously designated nonattainmentforthe one-hour ozone standard. As part of the Phase I Rule, the EPA considered several provisions of the FCAA that it stated were 

### evidence ofCongress' intent that certain obligations continue to epply when the EPA revises a NAAQS. The EPA stated that the FCCA, §175A(d) provided that areas could not remove controls that were mandated by the FCAA, Part D, SUbpart 2 even after 

### the area attained the NAAQS and was redesignated to attainmenl At most, a state could move FCAA, Part D, SUbpart 2 controls to the contingency plen provisions of the SIP. Another provision that the EPA reviewed and discussed in the Phese I Rule was FCAA, §172(e), which provides thelif the EPA revises a NAAQS to make it be less stringent, then the EPA must**promu~** gate regUlations applicable to areas that have not attained the original NAAQS to require controls that are no less stringent than 

### controls that applied to 

### areas designated nonattainment prior to such relaxation. The EPA concluded in the Phase I Rule that "•.



### . if Congress intended areas to remain SUbject to the same level of control where a NAAQS was relaxed, they also intended that 

### such controls not be weakened where the NAAQS is made more stringent

.... (69 Federal Register23972, April 30, 2004). Based on this premise, the EPA adopted rules that provided 

### for certain requirements to continue to apply to areas that were designated nonattainment for the one-hour ozone standard depending on how they were designated for the eight-hOU; 

### ozone NAAQS. Areas that were designated nonattainment for both the one-hour ozone and eight-hour ozone NAAQS were required to continue to apply certain requirements that applied 

### under the one-hour ozone standard, with specific exceptions (40 Code of Federal Regulations (CFR) §51.905(a)(1 

# ». These requirements included reasonably available control technology (RACT), inspection and maintenance programs (11M), major source applicability cut-offs for purposes of RACT, rate of progress reductions (ROP), stage II vapor recovery, clean fuelS fleet programs, clean fuel programs for boilers, transportation 

### control measures, enhanced ambient monitoring requirements, required transportation controls. vehide miles traveled requirements, and nitrogen oxides requirements (40 CFR §51.900(f). The EPA also proVided that nonattainment area New Source Review (NSR) requirements required by FCAA, §172(c)(5), 

### 173, and 182 based on the area's previous one-hour ozone NAAQS classification were no longer required elements of an approvable SIP (40 CFR §51.905(e)(4)). The EPA also 

### provided that areas would no longer have to meet requirements for confonnity, the development of maintenance plans. or the penany fee obligation for severe areas (40 CFR §51.905). The EPA's Phase I Rule provided that areas that were nonat

### tainment for the one-hour ozone NAAQS were not required to



## PROPOSED RULES August27,2010 35 

## TexReg 7687continue to use the more stringent major source thresholds and emission offset requirements of the one-hour ozone standard when implementing NsR and Title V pemnitting for the 1997 eight-hour ozone standard. All areas in Texas designated nonattainment for the 1997 eighthour ozone NAAQS that were also designated nonattainment for the one-hour ozone NAAQS were classified at a Riess stringent" level. Beaumont-Port Arthur (BPA) was classified as "serious" for the one-hour ozone NAAQS, but was dassified as "moderate" for the 1997 eight-hour ozone NAAQs. Houston-Galveston-Brazoria (HGB) was classified as "severe" for the one-hour ozone NAAQs and originally classified as "moderate" for the 1997 eight-hour ozone NAAQs. The EPA has since reclassified the HGB area to "severe" forthe 1997 eight-hour ozone NAAQs, pursuant to a voluntary redassification request by the Governor ofTexas. The Dallas-Fort Worth (DFW) area was classified as "serious" for the one-hour ozone NAAQS, and was classified as "moderate" for the 1997 eight-hour ozone NAAQs. The EI Paso area was nonattainment for the one-hour ozone NAAQS, classified as "serious," but designated attainment for the 1997 eight-hour ozone NAAQs. So, for example, a regulated entity in the HGB area triggered nonattainment review 

### if the potential to emit was equal to or greater than 25 tons per year (tpy) under the "severe" classification for the one-hour ozone NAAQS, but only triggered nonattainment review underthe "moderate" classification for the eighthourozone NAAQS ifthe potential to emitwas equal to or greater than 100 tpy. Under the existing rules, since the HGB area has been reclassified to "severe" for the 1997 eight-hour ozone NAAQs, regulated entities must again utilize the same major source threshold and emission offset requirements that previously applied under the one-hour ozone standard. After designations for the 1997 eight-hour ozone standard and the final Phase I Rule was effective, the commission proceeded with rulemaking to implement the requirements for the 1997 eight-hour ozone standard. The commission updated Chapter 116 to implement the changes from the Phase I Rule regarding the application of the 1997 eight-hour ozone standard for nonattainment NsR. On May 25, 2005, the commission adopted changes to Chapter 116, effective June 16, 2005, 

### to provide that for the HGB, DFW, and BPA eight-hour oZone nonattainment areas, if the EPA promulgated rules requiring NsR pemnit applications in those areas to be evaluated for nonattainment NSR according 

### to that area's**one~hour** ozone classification, then each application would be evaluated in accordance 

### with the area's one-hour ozone classification. "Evaluation" was specified as inclUding both the threshold for detemnining 

### ffthere was a modification as well as the ratio of offsets required, along with any other applicable requirement that depended upon an area's nonattainment classification. In adopting this rule, the commission noted that allhough the Phase I Rule prOVided for th application of the eight-hour ozone standard for nonattainment NsR, the EPA had granted a partial reconsideration of the Phase I Rule specifically regarding that issue, and the result of the reconsideration could be a return to the one-hour ozone standard for application of nonattainment NSR. Because of this concern, the commission adopted contingency language in §116.150, and in the table footnotes in the figure located in the definition of major modification in §116.12. This contingency language was adopted to be effective in the event that the EPA completed rulemaking to require states to return to a one-hour ozone standard trigger for federal nonattainment NSR evalua

## 35 TexReg 7688 

## August27, 

## 2010 Texas Register tions. In this proposal, the commission is proposing to remove this previously adopted contingency language. The EPA Phase I Rule, and partiCUlarly, the EPA's detemnination that areas designated as nonattainment under the one-hour ozone standard would no longer be subject to one-hour nonattainment NSR requirements, was successfully challenged in South Coasf Air Qualffy Managemant District v. Environmental Proteclion Agency, 472 F.3d BB2 (D.C. Cir. 2006) and the rule was partially vacated and remanded 

### to the EPA, as made clear in its revised opinion on June B, 2007 (South Coast Air Quality Manegement Distn'ct v. Environmental Protection Agency, 489 F.3d 1245 (D.C. Cir. 2007)). The South Coast decision was upheld by the United States Supreme Court on January 14, 200B. In a guidance memo issued on October 3, 2007, the EPA stated that it interpreted the South Coast ruling as restoring NsR applicability thresholds and emission offset requirements pursuant to classifications under the one-hour ozone standard. The EPA also noted in this gUidance memo that they intended to conduct rulemaking 

### to confomn the NsR regulations to the South Coast decision. EPA stated that it intended to issue an immediately-effective final rule under the authority of the Good Cause provision of the Federal Administrative Procedure Act to restore the NsR applicability thresholds and emission offsets associated with designated one-hour ozone nonattainment areas, and would begin a separate notice and comment rulemaking to address longer-term applicability of one-hour ozone NSR requirements, in particular, the conditions and mechanisms underwhich those one-hour ozone NSR requirements would cease to apply for NsR purposes. Lastly, the EPA strongly encouraged states to comply with the South Coasl decision as quickly as possible. Because the one-hour ozone standard has been revoked, the EPA is no longer making redesignations or reclassifications under this standard. However, the EPA is making detemninations under its Clean Data Policy that areas are currently attaining the one-hour ozone NAAQS. In its proposal to detemnine that the Southern New Jersey portion of the Philadelphia Metro nonattainment area attained the one-hour ozone NAAQS (73 FR 42727, July 23, 200B), the EPA discussed the effect of the D.C. Circuit Court of Appeals' decision vacating a portion of the 1997 eight-hour ozone Phase I Implementation Rule (South Coasl Air Qualffy Managemenf Districl v. EPA, 472 F3d BB2 (2006) and 4B9 F3d 1295 (2007»). The EPA stated: "With respect to the challenges to the anti-backsliding provisions of the rule, the Court vacated three provisions that would have allowed States to remove from the SIP or to not adopt three one-hour obligations once the one-hour ozone NAAQS was revoked (including one-hour nonattainment NSR requirements). fDhe three provisions noted previously.
. . were vacated by the Court. As a reSUlt, States must continue to meet the obligations for one-hour NsR

.. . . Currently, EPA is developing two proposed rules to address the Court's vacatur and remand with respect 

### to these three requirements. EPA will address in this proposed rule how the one-hour obligations that currently continue 

### to apply under EPA's anti-backsliding rule (as interpreted by the Court) apply where the EPA has made a determination that the area attained the one-hour ozone NAAQs by its attainment date." One possible outcome from the EPA rulemaking on this issue may be to direct states that want to remove one-hour ozone nonattainment NSR requirements to submit SIP revisions demonstrating that removing one-hour ozona nonattainment NSR requirements will not interfere with attainment or maintenance of the ozone NAAQS.Because the EPA has nol compleled any rulemaking to implement Ihe 

### Soulh Coasl decision regarding NSR anli-backsliding, states must decide how to implement, and give e/fect to, Ihe court's decision. Given the uncertainty of the future EPA rulemaking I and thefinality ofthe South Coastdecision as ofJanuary 14,2008, the commission is proposing to remove the previously adopted contingency language, in addition to other changes, to clarify the requirements for nonatlainment NSR. Without effective and understandable guidance from the EPA, through rulemaking or otherwise, the commission is left to determine the most reasonable course of action. The South Coast decision, upheld by the United States Supreme Court, makes clear that areas may at ignore one-hour ozone nonattainment NSR requirements. Since the commission had previously adopted rules specifying that sources in the SPA, HGB, and DFW nonattainment areas should apply eight-hour ozone nonatlainment NSR requirements, the commission is now proposing to delete certain portions of the definition in §116.12(18)(A), concerning major modification and the requirements of §116.150(d). The commission is proposing this rulemaking to make clear that permitted facilities in areas that were designated nonattainment for the one-hour ozone standard are subject to the major source thresholds and emission offsets ofthe one-hour ozone standard upon the effective date of this rulemaking. Depending on the EPA's action regarding this issue, these permitted facilities may continue to be subject to the major source thresholds and emission offsets of the one-hour ozone standard until the EPA approves the removal of one-hour ozone nonattainment NSR requirements from the SIP. Staff has previously presented these rule amendments (Rule Project 2008-031}-116-PR) 10 the commission for consideralion. At the February 25, 2009, commissioner's agenda, the commission remanded the rule project to the executive director's staff in anticipation 

### of additional direction or action by the EPA, because EPA continued to indicate in various federal notices its intent to complete rulemaking regarding NSR anti-backsliding requirements posttha 

### South Coasl decision. EPA's proposed rule to implement the 1997 eight-hourozone NAAOS revision on subpart 1 reclassification and anti-backsliding provisions under the former one-hour ozone standard was pUblished in the January 

### 16,2009, Fedaral Ragisler, but has not yet been finalized. This proposed rulemaking removes language regarding the exemptions from nonatlainment new source review (NNSR) that were vacated by 

### South Coasl. On September 23, 2009, the EPA published notice ofthe proposed disapproval of past revisions to Ihe Texas NNSR SIP (74 

### Fedaral Ragisler48467)that are related to these proposed amendments. In an effort to ensure that TCEQ regulatory requirements regarding the NNSR permitting program meets the requirements ofthe FCAA and are approvable into the SIP, "the commission is proposing the following amendments to eliminete any deficiencies that would prevent approval. Additionally, in order to prevent future confusion over designations and classifications and their related applicability thresholds and emissions offset requirements, the commission is proposing concurrant amendments to the definitions of maintenance area, and nonatlainment area in 30 TAC Chapter 101. SECTION BY SECTION DISCUSSION §116.12, 

### NonallainmenlandPrevanllon ofSignificantDelerloration Definftions The commission is proposing to change footnote 1 to remove the reference to the CFR and reference the definition of "nonattainment area" in 30 TAC Chapler 101.1. This reference is no longer necessary because the definition of nonattainment is being updated and also references the appropriate part ofthe CFR. The commission is also proposing to change the term -major modification level" to "significant level" in footnote 2 in Table 1 in §116.12(18)(A). This will ensure that the term used in the footnote matches the headin9 in the third column of the table and help eliminate any confusion reSUlting from the use of different terms. The commission is also proposing to remove footnotes 6 and 7 from Table 1 in §116.12(18)(A). Footnote 6 indicates that the EPA must complete rulemaking before NSR applications are evaluated according to their one-hour classification. However, the EPA has stated that: the 

### Soulh Coasl decision is**se~-implementing;** did not require rulemaking by the EPA to be effective; and NSR applications should be evaluated based upon one-hour classifications, ifthey are more stringent than an area's eight-hourdasstfication. Footnote 7 states that permit applications in areas designated as nonattainment for ozone under FCAA, Tille I, Part D, Subpart 1 (42 United States Code (USC), §7502) will be evaluated as if that area was designated as Marginal. However, Texas does not have any areas currently des· ignated as nonattainment for ozone under FCAA, Title I, Part D, Subpart 1. The San Antonio area was originally designated nonatlainment-deferred for the 1997 eight-hour ozone NAAOS, but has since been designated attainment. 

### §116.150, Naw Major Source or 

### Major Modificallon in Ozone NonattainmentAreas The commission proposes 

### to amend §116.150(a) by removing §116.150(a)(1) and (2). Subsection (a) would then be amended to apply the requirements of this subsection as of the date of issuance of the permit and 

### to add a requirement for continued applicability of nonattainment NSR until Ihe EPA has made a finding of attainment; the EPA has approved the removal of nonattainment New Source Review requirements from the area; or the EPA has determined that Prevention of Significant Deterioration requirements apply in the area. The commission also proposes to remove §116.150(d). Subsection (d) contains language similar

### to that in footnote 6 from Table 1 in §116.12(18)(A). This language indicates thaI the EPA must complete rulemaking before NSR applications are evaluated according to their one-hourclassification. However, the EPA has stated that: the 

### South Coasl decision is self-implementing; did not require rulemaking by the EPA to be effective; and NSR applications should be evaluated based upon one-hour classifications, if they are more stringent than an area's eight-hour classification. Additionally, the netting raquirement and exceptions in §116.150(d) are redundant of the same requirement and exceptions in §116.150(c) and thus, unnecessary. The commission also proposes relettering the remainder of §116.150 to reflect the removal of §116.150(d) and minor changes to references in §116.150(b) to reflect the releltering. The commission proposes a change to §116.150(e) to reflect changes proposed in a concurrent rulemaking in Chapter 101. FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that for the first five-year period the proposed rules are in effect, fiscal implications, although not significant, are anticipated for the agency. The proposed rules also have a significant fiscal impact on some local govemments in ozone



## PROPOSED RULES August27,2010 35 

## TexReg 7689

### non-attainment areasthatown oroperatefacilities that may qualify 

### as major sources of air emissions. In May 2005, the agency adopted changes to Chapter 116 that prOVided for the contingency of the EPA promulgating rules re

### qUiring major source NSR pennit

### applications to be evaluated according tothe one-hour ozone nonattainmentdesignations in addition to the eight-hour ozone nonattainment designations. Recent court decisions have required that both standards be evaluated. As 

### a result, in the DFW and SPA ozone nonattainment areas, the more stringent major source emission thresholds and emission offset requirements ofthe one-hourozone standard will be applied when implementing pennitting requirements for Title V pennits and NSR pennits. The proposed rules would amend Chapter 101 and in a concurrent rulemaking, Chapter 116 to 

### prOVide clarity regarding NSR permit requirements in areas previously designated nonattainment under the one-hour standard and ensure consistency with recent federal court decisions and the EPA's position resulting from those court decisions. The fiscal implications for the proposed changes to Chapter 101 

### are administrative in nature and are detailed in a separate concurrent rulemaking. The proposed amendments to Chapter 116 elarify when nonat

### tainment NSR reqUirements can be removed; eliminate a redundant definition; and specifically remove contingency language regarding EPA rulemaking for the one-hour ozone thresholds 

### and offset emission requirements. Removal of the contingency language will require the more stringent one-hour ozone emission thresholds and offset emission requirements to apply to facilities owned or operated by local governments that apply for NSR**penn~s.** There may be as many as three eleelrical generating facilities owned by local governments in the DFW eight

### hour ozone nonattainment area that will be required to comply with the one-hour ozone requirements If NSR permit requirements for modifications are needed. If facility modification is 

### detennined to 

### be a major modification or a new major source is constructed, controls complying with lowest achievable emission rale (LAER) reqUirements, ratherthan best available control technology (BACT), are needed. Control costs for LAER could range from $1,000 to $5,000 per ton for volatile organic compound (VOC) and nitrogen oxide (NO,) emissions overthe costs for BACT. In addition, emission offsets will 

### be required. Costs 

### for emission credits to satisfy the offset requirements .for NOt sources may range from $6,000 to $6,000 per ton. Costs for VOC emission credits could range from $650 per ton to $3,000 

### per ton. PUBLIC BENEFITS AND COSTS Nina Chamness also detennined that for each year of the first five years the proposed rules are in effeel, the public benefit anticipated from the changes seen in the proposed rules will be 

### more stringent NSR pennitting requirements in the DFW and BPA ozone nonattainment areas, which will be protective of human heatth and the environment. The proposed rules will affeel facilities of major sources of 

### air emissions in the DFW and SPA ozone nonattainment areas. These facilities may include electrical power generating stations, oil refineries, pipeline transmission facilities, petrochemical plants, incinerators, stationary engines, large boilers, and liquid or gas fired turbines. These types of facilities are typically owned by large businesses. Major sources and major 

### modiflcations of these facilities in these nonattainment areas will reqUire LAER controls, rether than BACT, when applying for



## 35 TexReg 7690 August 27, 

## 2010 Texas Register NSR permits. Control costs for LAER could range from $1,000 

### to $5,000 per ton for VOC and NOx 

### amissions over the costs for BACT. Emission offsets wUl also be required. Costs for emission credits to satisfy the offset requirements for NOx 

### sources may range from $6,000 to $6,000 per ton. Costs for VOC emission**cred~** could range from $650 per ton to $3,000 per ton. Based on past NSR pennilting activity over the past five years, 

### staff estimates thattwofacilities per yearwill be required to comply with the proposed rules. If LAER controls cost $5,000 perton 

### per year for 50 tons of NOx

### and emission offsets are needed for 60 tons with a cost of $6,000 per ton per year, statewide costs could be as much as $1,460,000 per year the first five years the 

### proposed rules are in effect. Total cost increases as a result 

### of the proposed rules for each**facil~** will vary depending on the 

### operating conditions and management decisions governing that facility. Depending on the unique conditions 

### ofeach entity, these cost increases could have a significant fiscal impact. SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT 

### No adverse fiscal implications are anticipated for small or micro-businesses as a result ofthe proposed rules. Small or microbusinesses do not typically own or operate facilities that would qualify as major sources of emissions. If a small or micro-business owns or operates a major source of emissions, it could expect to incur the same costs for LAER controls or credit offsets as those incurred by a large business. SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS 

### The commission has reviewed this proposed rulemaking and detennined thate small business regUlatory**flexlbll~** analysis is not 

### required because the proposed rules are required to protect the environment and to comply with federal regulations. In addition, the proposed rules are not expeeled to adversely affeel a small 

### or micro-business in a material wayforthe firstfive years that the proposed rules are in effect because small or micro-businesses do not typically own or operale facilities that would be govemed by the proposed rules. LOCAL EMPLOYMENT IMPACT STATEMENT 

### The commission has reviewed this proposed 

### rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affeel a local economy in a material way for the first five years thai the 

### proposed rules are in effect. DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION 

### The commission reviewed the proposed rulemaking in lightofthe 

### regulatory impact analysis requirements of Texas Government Code, §2001.0225, and detennined thatlhe rulemaking does not 

### meet the definition of a major environmental rule as defined in that slatute, and in addition, if it did meet the definition, would not be subjeelto the requirement to prepare a regUlatory impact 

### analysis. A major environmental rule means a rule, the specific intent 

### of Which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material waythe 

### economy, a sector ofthe 

### economy, productivity, competition, jobs, the environment, or the pUblic health and safety ofthe slale or a seclDr ofthe slate. The specific intent ofthe 

### proposed revisions is to 

### remove certain definitionsthat are duplicative, and to remove previously adopted contingency language that would require EPA final rulemaking before NSR ap

### plications are evaluated according to the one-hour classificationof the area where the facility is located. These changes will not 

### adversely affect the economy. a sector ofthe economy, productivity, competition, jobs, the environment, orthe public health and safety ofthe state or a sector 

### ofthe state in a material 

### way since they codify the effect a federal district court ruling that has been upheld by the United States Supreme Court in South Coast, as 

### discussed elsewhere in this preamble. Additionally, even W the rules met the definition of a major envi

### ronmental rule. the rulemaking does not meet any 

### ofthe four applicability criteria for requiring a regulatory impact analysis for a 

### major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Govemment Code, §2001.0225, applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule Is specifically required by state law; 2) exceed an express re

### quirement of state law, unless the rule is specifically required 

### by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal govemmentto implement a state and federal program; or 4) adopt a rule solely under the general powers of the 

### agency instead of under a specific state law. The proposed rules would implement requirements ofthe FCAA. Under 42 USC, §7410, each state is required to adopt and im

### plement a SIP containing adequate provisions to implement,**at~** tain, maintain, and enforce the NAAOS wrthin the state. While 42 USC, §7410 generally does not require specific programs, 

### methods, or emission reductions in order to meet the standard, state SIPs must include specific requirements as specified by 42 USC, §7410. The provisions of the FCAA recognize that states 

### are in the best position to determinewhat programs and controls are necessary or appropriate in order 10 meet the NAAOS. This flexibility allows states, affected industry, and the public to collaborate on the best methods for attaining the NAAOS for the specific regions in the state. Even though the FCAA allows states to devalop their own programs, this fleXibility does not relieve a state from developing a program that meels the requirements of 42 USC, §7410. States are not free to ignore the requirements of 42 USC, §7410, and must develop programs to assure that 

### their SIPs provide for implementation, attainment, maintenance, and enforcement of the NAAOS within the state. One of the requirements of 42 USC, §7410 is for states to include programs for the regUlation ofthe modification and construction of any sta

### tionary source within the area covered by the plan as necessary to assure that the NAAOS are achieved, inclUding a permit program as required in FCAA, Parts C and D, or NSR. Additionally, once states have developed SIPs, and those plans are approved by the EPA, the FCAA prescribes, in 42 USC, §7502(e) that the EPA, in modifying a NAAOS, shall promulgate rules that apply to all areas that have not attained the previous NAAOS that provide for controls that are no less stringent than the controls that previously applied to the area. The district court in South Coast found that NSR was a "control," and vacated the EP.A:s Phase I rUles that provided that the major source thresholds and offset re

### quirements that applied as a result of an area's designation and classHication underthe one-hour ozone standard were no longer necessary. Until the EPA completes rulemaking to further interprellhe applicability ofthe NSR permitting program in the context of 42 USC, §7502(e) and revisions 10 the ozone NAAOS, state rules that allow NSR review to rely upon designations and clas

### sifications for the eight-hour ozone standard in areas previously designated nonattainmentfor the one-hour ozone standard conflict with the South Coast ruling. 

### The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate BOI (SB) 633 during the 75th Legislature, 1997. The intenl of SB 633 was to re

### quire agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as 

### major environmental rules that will have a material adverse impact and will exceed a requirement ofstate law, federal law, 

### or a delegated federal program, or are adopted solely under the general powers of the agency. Wrth the understanding that this re

### quirement would seldom apply, the commission proVided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that 

### the bill will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number 

### of rules that would require assessment under the pr" visions of the bill was not large. This condusion was based, in part, on the criteria set forth in the bill that exempted rules from 

### the full analysis unless the rule was a major environmental rule that exceeded a federal law. 

### Because of the ongoing need to meet federal requirements, the commission routinely proposes and adopts rules incorporating or designed to satisfy specific federal requirements. The legisla

### ture is presumed to understand this federal scheme. 

### rt each rule proposad by the commission to meet a federal requirement was considered to be a majorenvironmental rule that exceedsfederal law, then each ofthose rules would require the full regulalory impact analysis (RIA) contemplatad by SB 633. This conclusion is 

### inconsistent with the condusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts ofthe bills it passes, and that presumption is based on information provided by state agancies and the LBB, the commission believes that the intent of SB 633 was only to require the full RIA for rules that are extraordinary in nature. While the pro

### posed rules may have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements ofthe FCAA, and in fact creates no additional impacts since the pro

### posed rules do notexceed the requirement 

### to attain and maintain the NAAOS. Forthese reasons, the proposed rules fall under the exception in Texas Government Code, §2001.0225(a), because they are required by, and do not exceed, federal law. 

### The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but leflthis provision SUbstantially unamended. 

### It is presumed that "when an agency interpretation is in effect at the time the legisla

### ture amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." (CentllllPower& Ught Co. v. Shalp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issua, 960 S.W.2d 617 (Tex. 1997); Bullock v. Malllthon Oil Co., 798 S'w.2d 353. 357 (Tex. App. Austin 1990, no writ). Ct. Humble Oil & Refining Co. v. Calvart, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Lifa Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coasta/lndust. WatarAuth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).) 

### The commission's interpretation of the RIA requirements is also supported by a change made to the Administrative Procedures Act (APA) by the legislature in 1999. In an attempt to limit the 

### number of rule challenges based upon APA requirements, the legislature darified that state agencies are required to meet



## PROPOSED RULES August17,1010 35 

## TexReg 7691these sections of the APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). The legislature specifically identified Texas Government Code, §2001.0225 as falling under this standard. As discussed in this analysis and elsewhere in this preamble, the commission has SUbstantially complied with the requirements of Texas Government Code, §2001.0225. The proposed rules implement requirements of the FCAA, specifically to adopt and implement SIPs to attain and maintain the NAAQS, including a requirement to adopt and implement 

### permit programs. The specific intent of the proposed rule revisions is to remove certain definitions that are duplicative, and previously adopted contingency language that would require EPA final rulemaking before NSR applications are evaluated 

### according to the one-hour classification of the area where the facility is located, in order to avoid conflict with the South Coast 

### decision. The proposed amendments were not developed solely under the general powers of the agency, but are authorized by specific sections of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and tile Texas Water Code, which are cited in tile STATUTORY AUTHORITY section of this preamble, including Texas Health and Safety Code, §§382.011, 382.012, and 382.017. Therefore, tIlis proposed rulemaking action is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b). Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the ad· dress listed under the SUBMITIAL OF COMMENTS section of this preamble. TAKINGS IMPACT ASSESSMENT Under Texas Government Code, §2007.002(5), taking means a 

### governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to tile United States Constitution or §17 or§19, Article I, Texas Con

### stitution; or a governmental action that affects an owner's private real property that is tile SUbject of the governmental action, in 

### whole or in part or temporarily or pennanently, in a manner that restricts or limits the owner's right to tile property that would oth

### elWise exist in the absence of the governmental action; and is the producing cause of a reduction of at least 25% in the market value of tile affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property deter

### mined as if the governmental action is in effect. The commission completed atakings impactanalysis forthe proposed rulemaking action under the Texas Govemment Code, §2007.043. The primary purpose of this proposed rulemaking 

### action, as discussed elsewhere in this preamble, is to remove certain definitions that are duplicative, and preViously adopted contingency language that would require EPA final rulemaking before NSR applications are evaluated according to the one

### hour classification 

### ofthe area where the facility is located. The proposed rules will not create any additional burden on private real property. The proposed rules will not affect private real 

### property in a manner that would require compensation to private real property owners under tile United States Constitution or the Texas Constitution. The proposal also will not affect private real 

### property in a mannerthat 

### restricts or limits an owner's right

### to the property that would otherwise exist in the absence of tile gov

## 35 TexReg 7692 

## August27,2010 Texas Register ernmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code, Chapter 2007. CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM 

### The commission determined that this rulemaking action relates to an action or actions subject

### to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 ef seq.), and commission rules in 30 TAC Chapter 281, Sub

### chapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281,45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject 

### to the CMP, 

### commission rules goveming air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The 

### commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and detennined that the action is consis-- tent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance tile diversity, quality, quan

### tity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). The proposed amendments will indirectly ben

### efit the environment because reduced emissions resulting from the more stringent major source thresholds and emission offset requirements of the one-hour ozone standard ensure that there will be fewer adverse impacts to pUblic health and the environment. The CMP policy applicable to this rulemaking action is the policy tIlat commission rules comply with federal regulations in 40 CFR to protect and enhance air quality in the coastal areas (31 TAC §501.14(q»). Therefore, in accordance with 31 TAC §505.22(e), the commission allinns tIlat tIlis rulemaking action is consistent witll CMP goals and policies. 

### Written comments on the consistency of the proposed rulemaking may be submitted to the contact person at the address listed under the SUBMITIAL OF COMMENTS section of this preamble. EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM Chapter 116 is an applicable requirement of 30 TAC Chapter 122, Federal Operating Pennits Program. If the proposed rules are adopted, owners or operators subject

### to the federal operat

### ing permit program must, consistent with the revision process in Chapter 122, upon the effective date of tile adopted rulemaking, revise tIleir operating pennit to include the new Chapter 116 requirements. Additionally, sources subject to the proposed rules may become SUbject to the federal operating pennit program. ANNOUNCEMENT OF HEARING 

### The commission will hold a pUblic hearing on this proposal in Austin on September 20. 2010, at 2:00 p.m. in Building E Room 201 S, at the commission's central office located at 12100 Park 35 Circle. The hearing is structured for tile receipt of oral or writ

### ten comments by interested persons. Individuals may present oral statements when called upon in order 

### of registration. Open discussion will not be pennitted dUring the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Chartotte Hom, Office of Legal Services at (512) 239-0779. Re

### quests should be made as far in advance as possible.SUBMITTAL OF COMMENTS Written comments may be submitted to Devon Ryan, 

## Me 205, Office of Legal Services, Texas Commission on Environ· mental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2008.{)30-116·PR. The comment period closes September 27, 2010. Copies of the proposed rule· making can be obtained from the commission's Web site at http.1fwww.tceq.state./x.us/nav/rules/propose_edopt.html. For further information, please contact Blake Stewart, Air Permits Division, (512) 239-6931. 

## SUBCHAPTER A. DEFINITIONS 30 TAC §116.12 STATUTORY AUTHORITY The amendment is proposed under Texas Water Code §5.1 02, concerning General Powers, §5.103, concerning Rules, and §5.105 concerning General Policy, Which authorize the commission to adopt rules as necessary to carry out its power and duties under the Texas Water Code; Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, concerning Stale Air Control Plan, which authorizes the commission to pre-- pare and develop a comprehensive plan for the proper control of the state's air; and §382.051, conceming Permitting Authority of the Commission, which authorizes the commission to issue permits to construct a new facility or modify an existing facility that may emit air contaminants, and authority to adopt rules necessary to comply with changes in federal law or regulations applicable to permits issued under the TCAA. The proposed amendment implements Texas Water Code, §5.103; and Texas Health and Safety Code, §§382.017, 382.012, and 382.051. §1l6.12. Nonattainmellt andPrevention o/SignificantDeterioration Review Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules ofthe commission, the tenns used 

### by the commission have the meanings commonly ascribed to them in the field ofair pollution control. The terms in this section are applicable to permit review for major source construction andmajor source modification in nonattainment areas. In addition to the terms that are defined by the TCAA, and in § 101.] ofthis title (relating to Definitions), the following words and terms, when used in Chapter 116, Subchapter B, Divisions 5 and 6 of this title (relating to Nonattainment Review Permits and Prevention of SignificantDeteriorationReview); and Chapter 116, SubchapterC. Division 1 ofthis title (relating to Plant-Wide Applicability Limits), have the following meanings. unless the context clearly indicates otherwise. (I) Actual ernissions--Actual emissions as ofa particular date are equal to the average rate, in tons per year, at which the unit actually emitted the pollutant during the 24-month period that precedes the particular date and tbat is representative ofnormal source operation., except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a plant-wide applicability limit. Instead, paragraph (3) ofthis section relating to baseline actual emissions shall apply for this purpose. The executive director shall allow the USe of a different time period upon a detennination that it is more representative ofnonnal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period. The executive director may presume that the source-specific allowable emissions for the unitare equivalentto the actual emissions, e.g., when the allowable limit is reflective ofactual emissions. For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit ofthe unit on that date. (2) Allowable emissions--The emissions rate ofa stationary source, calculated using the maximum rated capacity ofthe source (unless the source is subject to federally enforceable limits thatresbict the operating rate, or hours ofoperation, or both), and the most stringent of

### the following: (A) 

### the applicable standards specified in 40 Code of Federal Regulations Part 60 or 61; (B) the applicable state implementation plan emissions limitation inclUding those with a future compliance date; or (C) the emissions rate specified as a federally enforce· able permit condition including those with a future compliance date. (3) Baseline actual emissions--The rate of emissions, in tons per year. ofa federally regulated new source review pollutant. (A) For any existing electric utility steam generating unit, baseline actual emissions means the rate, intons peryear, atwhich theunitactuallyemittedthepollutantduring any consecutive 24-month period selected 

### by the owner or operator within the five-year period immediately preceding when the owneror operator begins actual construction ofthe project. The executive director shall allow the use of a different time period upon a detennination that it is more representativc ofnormal source operation. (B) For an existing facility (otherthan an electric utility steam generating unit), baseline actual emissions means the rate, in tons peryear, atwhich the facility actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the ten-year period immediately preceding either the date the owner oroperator begins actual construction ofthe project.. or the date a completepermitapplication isreceivedfor apermit. The rate shall be adjusteddownwardto excludeany emissions thatwould haveexceeded an emission limitation with which the major stationary source must currently comply with the exception ofthose required under 40 Code ofFederal Regulations Part 63, had such major stationary source been required to comply with such limitations during the consecutive 24- month period. (C) For anew facility, the baseline actual emissions for purposes ofdetermining the emissionsincreasethatwill result from the initial construction and operation ofsuch unit shall equal zero; and for all otherpurposes during the first two years following initial operation., shall equal the unit's potential to emit. (D) The actual rate shall be adjusted downward to exclude any non-compliant emissions that occurred during the consecutive 24-month period. For each regulated new source review pollutant, when a project involves multiple facilities, only one consecutive 24-month period must be used to determine the baseline actual emissions for the facilities being changed. A different consecutive 24-month period can be used for each regulated new source review pollutant. Therate shall not be based on any consecutive 24-monthperiod for which there is inadequate information for detennining annual emissions, in tons per year, and for adjusting this amount Baseline emissions cannot occur prior to November 15, 1990.



## PROPOSED RULES August27,2010 35 

## TexReg 7693(E) The actual emtsslons rate shall include fugitive emissions to the extent quantifiable. Until March 1,2016, emissions previously demonstrated as emissions events or historically exempted under Chapter 101 ofthis title (relating to General Air Quality RUles) may be included to the extent that they have been authorized, or are being authorized. (4) Basic design parameters--For a process unit at a steam electric generating faCility, the owner or operator may select as its basic design parameters eithermaximum hourly heat inputandmaximum hourly fuel consumption rate or maximum hourly electric output rate and maximum steam flow rate. When establishing fuel consumption specifications in tenns ofweight or volume, the minimum fucl quality based onBritish thennal units content shall be used for detennining the basic design parameters for a coal-fired electric utility steam generating unit. The basic design parameters for any process unit that is not at a steam electric generating facility are maximum rate offuel or beat input, maximum rate ofmaterial input, or maximum rate ofproduct output. Combustion process units will typically use maximum rate of fuel input. For sources having multipleendproducts andraw materials, the owneroroperatorshall considertheprimaryproductorprimary raw material when selecting a basic design parameter. The owner or operator may propose an alternative basic design parameter for the source's process units to the executive director ifthe owneroroperator believes the basic design parameter as defined in this paragraph is not appropriate for a specific industry or type ofprocess unit. 

### If the executive director approves ofthe use ofan alternative basic design parameter, that basic design parameter shallbe identified and compliance required in a condition in a pennit that is legally enforceable. (A) The owner or Operator shall use credible infonnation. such as results ofhistoric maximum eapability tests, design information from the manufacturer, or engiileering calculations, in establishing the magnitude ofthe basic design parameter. (B) 

### Ifdesign information is not available for a process unit, the owner or operator shall detennine the process unit's basic design parameter(s) using the maximum value achieved by the process unit in the five-year period immediately preceding the planned activity. (C) Efficiency of a process unit is not a basic design parameter. (5) Begin actual construction--In general, initiation of physical on-site construction activities on an emissions unit that are of a pennanent nature. Such activities include, but are not limited to, installation ofbuilding supports and foundations, laying ofunderground pipework, and construction ofpermanent storage structures. With respect to a change in method ofoperation, this term refers to those on-site activities other than preparatory activities that mark the initiation ofthe change. (6) Building, structure, facility, or installation--All ofthe pollutant-emitting activities that belong to the same industrial grouping, are located in one or more contiguous or adjacent properties, and are under the control ofthe same person (or persons under common control). Pollutant-emitting activities are considered to be part ofthe same industrial grouping iftheybelongto the same "ma jorgroup" (i.e., that have the same two-digiL code) as described in the Standard Industrial ClassificationManual. 1972, as amended by the 1977 supplement. (7) Clean coal technology--Any technology, including technologies applied at the precombustion, combustion. or post-combustion stage, at a new or existing facility that will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization ofcoal in the generation ofelectricity,



## 35 TexReg 7694 

## August27, 

## 2010 Texas Register or process steam that was not in widespread use as ofNovember 15, 1990. (8) Clean coal technology demonstration project--A project using funds appropriated under the heading I'Department of Energy-Clean Coal Technology," up to a total amount of$2.5 billion for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the United States Environmental Protection Agency. The federal contribution for a qualifying project shall be at least 20% of the total cost of the demonstration project. (9) Commence-As applied to construction ofa major stationary source or major modification, means thatthe owneroroperator has all necessary preconstruction approvals orpermits and either has: (A) hegun, or caused to begin, a continuous program ofactual on-site construction ofthe source, to be completed within a reasonahle time; or (B) enteredintobinding agreements orcontractual obligations, which cannot be canceled ormodified without substantial10ss to the owner oroperator, to undertake a program ofactual construction ofthe source to be completed within a reasonable time. (10) Construction--Any physical change or change in the method ofoperation (inclUding fabrication, erection. installation, demolition, or modification ofan emissions unit) that would result in a change in actual emissions. (11) Contemporaneous period--For major sources the period between: (A) the date that the increase from the particularchange occurs; and (B) 60 months prior to the date that construction on the particular ehange commences. (12) De minimis threshold test (netting)-A method ofdetermining ifa proposed emission increase will trigger nonattainment or prevention of significant deterioration review. The summation of the proposed project emission increase in tons per year with all other creditable source emission increases and decreases during the contemporaneous period is compared to the significant level for thatpollutant. ]fthe significant level is exceeded, then prevention ofsignificant deterioration and/or nonattainment review is required. (13) Electricutility steam generatingunit--Any steamelectric generating unit that is constructed for the purpose of supplying more than one-third ofits potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose ofproviding steam to a steam-electric generatorthat would produce electrical energy for sale is included in determining the electrical energy output capacity ofthe affeeted facility. (14) Federally regulated new source review pollutant-As defined in subparagraphs (A)

- (D) ofthis paragrapb: (A) any pollutant forwhich a national ambientair quality standard has been promulgated and any constituents or precursors for such pollutants identified by the United States Environmental Protection Agency; (B) any pollutantthatis subjectto any standardpromulgated under Federol Clean Air Act (FCAA), §111; (C) any Class I orII substance subject

### to a standard promulgated under or established by FCAA, Title VI; or(0) any pollutant that otherwise is subject to regulation under the FCAA; except that any or all hazardous air JX>lIutanls either listed in FCAA, § 112 or added 

### to the list under FCAA, §l12(b)(2), which have not been delisted under FCAA, §1l2(b)(3), are not regulatednew sourcereview pollutants unless the listedhazardous airpollutantis also regulated as a constituentor precursor ofageneral pollutant listed under FCAA, §108. (15) Lowestachievableemission rate--Forany emitting facility, that rate ofemissions ofa contaminant that does not exceed the amount allowable under applicable new source perfonnance standards promulgated by the United States Environmental Protection Agency under 42 United States Code, §7411, and that reflects the following: (A) the most stringent emission limitation that is contained in the rules and regulations ofany approved state implementation plan for a specific class or category offacility, unless the owner or operator ofthe proposed facility demonstrates that sueh limitations are not achievable; or (B) the most stringent emission limitation that is achieved in practice by a specific class or category of facilities, whichever is more stringent. (16) Major facility--Any facility that emits or has the potential to emit 100 tons peryearormore oftheplant-wide applicability limit (pAL) pollutant in an attainment area; or any facility that emits or has the potential to emit the PAL pollutant in an amount that is equal to or greater than the major source threshold for the PAL pollutant in Table 

### Jofthis section for nonattainment areas. (17) Major stationary source--Any stationary source that emits, or has the potential to emit, a threshold quantity of emissions or more ofany air contaminant (including volatile organic compounds (VOCs) for which a national ambient air quality standard has been issued. The major source thresholds are identified in Table 

### Jofthis section for nonattainment pollutants and the major sOurce thresholds for prevention of significant deteriomtion pollutants are identified in 40 CodeofFedernlRegulations (CFR) §51.l66(b)(1). A sourcethaIemits, or has thepotential to emita federally regulatednew source review pollutantatlevels greater 

### than those identified in 40 CFR §51.166(b)(I) is considered major for all prcvention ofsignificant deterioration pollutants. A major stationary source that is major for VOCs or nitrogen oxides is considered to be major for ozone. The fugitive emissions of a stationary source shall not be included in determining for any ofthe purposes ofthis definition whether it is a major stationary source, unless the source belongs to one ofthe categories ofstationary sources listed in 40 CFR §51.165(a)(I)(iv)(C).

. (18) Major modification-As follows. (A) Any physical change in, or change 

### in the method of operation ofa major stationary SOurce that causes a significant project emissions inerease and a significant net emissions increase for any federally regulated new source review pollutant. At a stationary source that is not major prior to the increase, the increase by itselfmust equal or exceed that specified for a major source. At an existing major stationary source, the inerease must equal or exceed that specified for a major modification to be significant. The major source and significant thresholds areprovidedin Table Iofthis sectionfor nonattainment pollutants. The major source and significant thresholds for prevention of significant deterioration pollutants are identified in40 Code ofFederal Regulations §51.166(b)(l) and (23), respectively. Figure: 30 TAC §116.12(181(Al [l'igufe; 3G'I'M; 

### §116.12(18)(1.)] (B) A physical change or cbange in the method ofoperation shall not include: (i) routine maintenance, repair, and replacement; (ii) use ofan alternative fuel orraw material by reason ofan orderundertheEnergy Supply andEnvironmental Coordination Ac( of 1974, §2(a) and (b) (or any supemeding legislation) or by reason ofanatural gas curtailment plan under the Federal Power Act; (iii) use ofan alternative fuel by reason ofan order or rule of42 United States Code, §7425; (iv) use ofan alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solidwaste; (v) use of an alternative fuel or raw material by a stationary source that the source was capable ofaccommodating before December21, 1976 (unless such changewouldbeprohibited underany federally enforceable permit condition established after December 21. 1976) or tbe source is approved to use under any pennit issued under regulations approved under this ehapter; (vi) an increase in the hours of operation or in the produetion rate (unless the change is prohibited under any federally enforceable permit condition that was established after December 21, 1976); (vii) any change in ownership ata stationary Source; (viii) any change inemissions ofa pollutant at a site that occurs under an existing plant-wide applicability limit; 

### Ox) the installation, operation, cessation, or removal ofa temporary clean coal technology demonstration project, provided that the project complies with the state implementation plan and other requirements necessary to attain and maintain the national ambient air quality standard during the project and after it is tenninated; (x) for prevention ofsignifieant deterioration review only, the installation oroperation ofapermanentclean coal technology demonstration project that constitutes rc-powering, provided that the project does not result in an increase in tbe potential to emit of any regulated pollutant emitted by the unit. This exemption shall apply on 

### a pollutant-by-pollutant basis; or (xi) for prevention of significant deterioration re· view only, the reactivation ofa clean coal-fired electric utility steam generating unit. (19) Necessary preconstruetion approvals or permits-Those permits or approvals required 

### under federal air quality control laws and regulations and those air quality control laws and regulations that are part ofthe applicable state implementation plan. (20) Net emissions increase--The amount by whicb the sum ofthe following exceeds zero: the project emissions increase plus any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases. Baseline actual emissions shall be used to determine emissions increases and decreases. (A) An increase or decrease 

### in emissions is creditable only ifthe following conditions are mel: (;) it occurs during the contemporaneous period; (iO the executive director has not relied on it in issuing a federal new source review pennit for the source and that permit is in effect when the increase in emissions from the particular change occurs; and (iii) in the case ofprevention ofsignificant deterioration review only, an increase or decrease in emissions ofsulfur dioxide, partiCUlate matter, or nitrogen oxides that occurs before the appli

## PROPOSED RULES August17,1010 35 TexReg 7695cableminor source baseline date is creditable only ifit is required to be considered in calculating the amount ofmaximum allowable increases remaining available. (B) An increase in emissions is creditablc ifit is the result ofa physical change in, or change in the method ofoperation ofa stationary source only to the extent thal the new level ofemissions exceeds the baseline actual emission rate. Emission increases at facilities under a plant-wide applicability limit are not creditable. (C) A decrease inemissions is creditable only to 

### the exlent that all ofthe following conditions are met: (i) thebaselineactual emission rale exceeds the new level ofemissions; (ii) it is enforceable at and after the time that actual construction on the particular change begins; (iii) the executive directorhas notreliedonitin issuing a prevention ofsignificant deterioration or a nonattainment permit; (iv) the decrease has approximately the same qualitative significance forpublic health and welfare as thatattributed to the increase from the particular change; and (11 in thc case ofnonattainment applicability analysis only, the state has not relied on the decreasc to demonstrate attainment or reasonablc further progress. (0) An increase that results from aphysical change at a source occurs when the emissions unit on which constructionoccurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period. not to exceed 180 days. (21) Offset ratio--For the purpose of satisfying the emissions offset reduction requirements of 42 United States Code, §7503(a)(J)(A), the emissions offset ratio is the ratio oftotal actual reductions ofemissions to total emissions increases ofsuchpollutants. The minimum offset ratios are included in Table I ofthis section under the definition ofmajor modification. In order for a reductionto qualify as an offset, it must be certified as an emission credit under Chapter 101, Subchapter H, Division I or 4 ofthis title (relating to Emission Credit Banking and 

### [et] Trading; or DiscreteEmission Credit Banking and Trading), except as provided for in §116.170(b) of this title (relating to Applicability of Emission Reductions as Offsets). The reduction must not have 

### been relied on in the issuance ofa previous nonattainment or prevention ofsignificant deterioration permit. (22) Plant-wide applicability limit--An emission limitation expressed, in tons per year, for a pollutant at a major stationary source, that is enforceable and established in a plant-wide applicability limit permitunder §116.186ofthis title (relatingto General and Special Conditions). (23) Plant-wide applicability limit effective datc--The date ofissuance oftheplant-wide applicabilitylimit permit. Theplant-Wide applicability limit effective date for aplant-wide applicability limit establishedin anexistingflexiblepennitis the datethattheflexiblepermit was issued. (24) Plant-wide applicability limit major modification-Any physical change in, or change in the method of operation ofthe plant-wide applicability limit source that causes it to emit the plant-wide appl1cability limit pollutant at a level equal to or greater than the plant-wide applicability limit. (25) Plant-wide applicability limitpennit--Thenew source review permit that establishes the plant-wide applicability limit.



## 35 TexReg 7696 

## August27,2010 Texas Register (26) Plant-wide applicability limitpollutant--The pollutant for which a plant-wide applicability limit is established at a major stationary source. (27) Potential to emit-Themaximum capacityofa stationary source to emita pollutant underits physical and operational design. Any physical or enforceable operational limitation on the capacity of the stationary source to emit a pollutant, including air pollution control equipment and restrictions on hours ofoperation or on the type or amount ofmaterial combusted, stored, or processed, may be treated as part ofits design only ifthe limitation or the effect it would have on emissions is federally enforceable. Secondary emissions, as defined in 40 Code ofFederal Regulations §51.165(a)(I)(viii), do not count in delennining the potential to emit for a stationary source. (28) Project net··The sum of the following: the project emissions increase, minus any sourcewide creditable emission decreases proposed at the source between the date of application for the modification and the date the resultant modification begins emit· ting. Baseline actual emissions shall be used to determine emissions increases and decreases. Increases and decreases must meet 

### the creditability criteria listed under the definition ofnet cmissions incrcase in this section. (29) Projected actual emissions--The maximum annual rate, in tons per year, at which an existing facility is projected to emit a federally regulated new source review pollutant in any rolling 12-month period during the fivc years following the date the facility resumes regular operation after the project, or in anyone ofthe ten years following that date, if the project involves increasing the facility's design capacity or its potential to emit that federally regulated new source review pollutant. In detennining the projected actual emissions, the owner or operator ofthe major stationary source shall include fugitive emissions to the extent quantifiable and sball consider all relevant infonnation, including, but not limited 

### to, historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's 

### filings with the state or federal regulatory authorities, and compliance plans under the approved state implementation plan. (30) Project emissions increase--The sum ofemissions increases for each modified or affected facility detenninedusing the following methods: (A) for existing facilities, the difference between the projected actual emissions and the baseline actual emissions. In ealculating any increase in emissions that results from the project, that portion ofthe facility's emissions following the project that the facility could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due to product demand growth may be excluded from the project emission increase. The potential to emit from the facility following completion ofthe project may beused in lieu ofthe projected actual emission rate; and (B) for new facilities, the difference between the potenlial to emit from the facility following completion ofthe project and the baseline actual emissions. (31) Replacement facility-A facility that satisfies the following criteria: (A) the facil1ty is a reconstructed unit within the meaning of40 Code ofFederal Regulations §60.15(b)(1), or the facility replaces an existing facility;

## SUBCHAPTER B. 

## NEW SOURCE REVIEW PERMITS DIVISION 5. NONATTAINMENT REVIEW PERMITS (B) the facility is identical to or functionally equivalent

to the replaced facility; (C) the replacement does not alter the basic design**pa~** rameters ofthe process unit; (D) the replaced facility is permanently removed from the major stationary source, othef"'tllise pennanently disabled, or**per~** manently barred from operation by a permit that is enforceable. Ifthe replaced facility is brought back into operation, it shall constitute a new facility. No creditable emissionreductions shall be generatedfrom shutting down the existing facility that is replaced. A replacement facility is considered an existing facility for the purpose ofdetermining federal new source review applicability. (32) Secondary emissions--Emissions that would occur as a result of the construction or operation ofa major stationary source or major modification, but do nol come from the sourcc or**modifica~** tion itself. Secondary emissions must be specific, well-defined, quantifiable, and impact the same general area as the stationary source or modification that causes the secondary emissions. Secondary emissions include emissions from any**off~site** support facility that would not be constructed or increase its emissions, except as a result of the construction or operation ofthe major stationary source ormajor modification. Secondary emissions do not include any emissions that come directly 

### from a mobile source such as emissions from the tailpipe ofa motor vehicle, from a train, or from a vessel. (33) Significantfacility--A facility that emits orhas 

### the potential to emit a plant-wide applicability limit (PAL) pollutant in an amountthat is equalto or greater than the significant level for thatPAL pollutant. (34) Small facility--A facilitythatemits orhas thepotential to 

### emit the**plant~wide** applicability limit (PAL) pollutant in an amount less than the sjgnificant level for that PAL pollutant. (35) Stationary source--Any building, structure. facility, or installationthatemits ormay emitany airpollutantsubjectto regulation under 42 United States Code, §§7401 efseq. (36) Temporary clean coal technology demonstration project--A clean coal technology demonstration project that is operated for a period offive years or less, and that complies with the state implementation plan and other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is tenninated. This agency hereby certifies thatthe proposal has been reviewed by legal counsel and found to be within the agency's legal author

### ity to adopt. Filed wilh the Office olthe Secretaryof State on Augusl13, 2010. TRD-201004710 Robert Martinez Director, Environmental Law Division Texas Commi88ion on Environmental Quality Ear1iest possible date of adoption: September 26, 2010 For further information, please call: (512) 239-6090 

# • • • 30 TAC §1l6.150 STATUTORY AUTHORITY The amendment is proposed under Texas Waler Code, §5.102, concerning General Powers, §5.103, concerning Rules, and §5.105 concerning General Policy, which authorize Ihe commission to adopt rules as necessary 

### to carry out its power and duties under the Texas Water Code; Texas Health and Safety Code, Texas Clean Air Act (TCAA), §382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of Ihe state's air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a comprehensive plan lor the proper control of the state's air; and §382.051, concerning Permitting Authority of the Commission, which authorizes the commission to issue permits to construct a new facility or modify an existing facility that may emit air contaminants, and authority to adopt rules necessary to comply with changes in federal law or regulations applicable to permits issued undar the TCAA. The proposed amendment implements Texas Water Code, §5.103; and Texas Health and Safety Code, §§382.017, 382.012, and 382.051. 

### §//6./50. NewMojo,. Source orMajorModification in OzoneNonattainmentAreas. (a) This section appliesto all new source review authorizations for new construction ormodification offacilities that will be located in any area designated as nonattainment for ozone under

### 42 United States Code (uSC). §§7407 et seq. 

### as ofthe date ofissuance ofthe permit, unless: [

.. -.:] 

## ill the United States Environmental Proteetion Agency (EPA) has made a finding ofattainment; 

## ill the EPA has approved the removal ofnonattainment New Source Review (NSR) requirements from the 

### area; 

## ill the EPA has determined that Prevention ofSignificant Deterioration requirements 

### apply in the area: or 

## ill the EPA detennines that nonattainment NSR is no longer required for purposes ofantibacksliding. 

### IfB fa<all """Ii

...... 

### fa< 

### faeiIiIies

_ wiIll>eieeole&HI 

### eBYMefl designated

### as fteBettainmeftt**fef~** tIftdef

### e-YttiiedStates

### teee W4Q+ '"

_ tIR tlte .- <!ale 

### efthis --. tlte 

### isstHmeedate-

### efthe**aalhefi~&lien;** aBEij 

## ft2J fa< aIIepplieeli••, 

### fa< faeiIiIies

_ 

### wiIll>eieeole&HI 

### eeuaties-fefwhteltflBftattBHlHleBt designatieB**fef~** tHMIefGYSG**~et-BetF** heeemes effeeti.vea.ftefthe eff'eeu'/e

### deleeftftis.-seetieft; the

### tItHethe 

### 8pflI]jeah6ftis-

### aamiHislJ'Bhvely eBmfllete.] (b) The owner or operator ofa proposed new major stationary source, as defined 

### in §116.12 ofthis title (relating toNonattainmentand Prevention ofSignificantDeterioration Review Definitions) ofvolatile organic compound (VOC) emissions or nitrogen oxides (N0x)**emis~** sions, or the owner oroperatorofan existing stationary source ofVOC or NOx emissions that will undergo a major modification, as defined in §116.12 ofthis title with respect to VOC orNOx' shall meet the**re~** quirements ofsubsection (d)(l) • (4) [sHhseetisn 

### te*B
- (4)] ofthis section, except as provided in subsection [(f)] oftbis section. Table 1, located in the definition ofmajor modification in § 116.12 ofthis title, specifies the various classifications ofnonattainment along with the associated emission levels that designate a major stationary source and significant level for those classifications.



## PROPOSED RULES August27, 

## 2010 35 

## TexReg 7697

## CHAPTER 116. CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION ified facility or facilities must be offset. The proposed facility shaU use the offset ratio for the appropriate nonattainment classification as defined in §116.12 of

### this title and shown 

### in Table I located in the definition ofmajor modification in §116.12 ofthis title. Internal offsets that are generated at the source and that otherwise meet all creditability criteria can be applied as follows. 

### (Al Major stationary sources with, a 

### PTE ofless than 100 tpy of an applicable nonattainment pollutant are not required to undergo nonattainment new source review under this section, if the project increases are offset with internat offsets at a ratio ofat least 1.3 to 1.

The Texas Commission on Environmental Quality (commission or TCEO) proposes amendments to §§116.12, 116.115, 116.180,116.182,116.186,116.188,116.190, 116.192, 116.601, and 116.617; new §116.127; and the repeal 01 §116.121. Thft proposed amendments to §§116.12, 116.115, 116.180, 116.182, 116.186, 116.188, 116.190, 116.192, and 116.601; and new §116.127 will be submilted to the United States Environmental Protection Agency (EPA) as revisions to the State Implementation Plan (SIP). BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES On June 10, 2005, the TCEO submiltftd the amendment to §116.12 to thft EPA as a revision to thft New Source Review (NSR) SIP and §116.150 as a revision 

### to the Nonattainment New Source Review (NNSR) SIP, both adopted on May 25, (8) Major stationary sources with aPTE ofgreater than or equal to 100 tpy of

### an applicable nonattainment pollutant can substituteBACT forLAER, ifthe project increases are offsetwith internal offsets ata ratio ofat least 1.3 to 1. Internal offsets used in this manner can also be applied to satisfy tbe offset requirement. (4) In accordance with the FCAA, the permit application must contain an analysis of alternative sites, sizes. production processes, and control techniques for the proposed source. The analysis must demonstrate that the benefits oftheproposed location and source configuration significantly outweighthe environmental and social costs ofthat location. 

## ll1 [«1] For sources located in the EJ Paso owne nonattainmentareaas defined in 40 Code ofFederalRegulatioDS, Part 81**[~** ttf

### -this- title te**gefiRitiaRs~],** the requirements ofthis section do not apply to NOx emissions. This agency hftreby certifies thatthe proposal has been reviewed by legal counsel and lound to be within thft agency's legal authority to adopt. Filed wlth the Office ofthe Secretary01 Stale on August 13, 2010. TRD-201004711 Roben Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date ofadoption: September 26,2010 Forfurther infonnation, please call: (512) 239--6090 

# ••• (c) Except as noted in subsection [«1] ofthis section regarding NOx' the de minimis threshold test (netting) is required for all modifications to existing major sourees ofVOC orNOx' unless at least one ofthe following conditions are met: (1) the proposed emissions increases associated with a project, withoutregard to decreases, is less thanfive tons per year (tpy) of the individual nonattainment pollutant 

### in areas classified under Federal Clean Air Act (FCAA), Title I, Part D, Subpart 2 (42 USC, §7511) classified as Serious or Severe; (2) the proposed emissions increases associated with a project. without regard to decreases, is less than 40 tpy of the**indi~** vidual nonattainment pollutant in areas classified under FCAA, Title I, Part D, Subpart 1 (42 USC, §7502) and for those under FCAA, Title I, Part D, Subpart 2 (42 USC, §751I) classified as Marginal or Moderate; or (3) the project emissions increases are less than the significant level stated in Table I located in the definition ofmajor modification in § 116.12 ofthis title and when coupled with project actual emissions decreases for the same pollutant, summed 

### as the project net, are less than or equal to zero tpy. 

### ftdt Fe£. ffte Bewlen Gal. esteR**B~eFia,** 'Dallas FeFl WeflI:r, 

## aae BeENlfftBnt PeR AFtfltIt eight h6fif MeBe R6R8ttainrnefd aFeft50 if the HffiteEI8tales- 6ft. iFBBfBeRtaI 

### PfeteetisftAgeReyflfBftutlgtHeS fttlesFeEJl::I:iFing ftew SEH::H'ee :FeYiew 

### peJ'fftit- 8fIfllieatiefts 

### ffi these 6fe&S te 

### :ee- e •alL,lateeifer. ftsfl&tt&illffiefttftewSEH::H'eeRWtewaeeer6:iag

### t&.aateBe heur 

### 5f:&ftdeHl elB:Ssmeatieft, geept a&

### -BeteEi tit s\lBseetiBll f&) ttf «tis- regaftiiftg NG,r; ffte fie. tlu=eshelel test (ftettiftg) 

### is**~"'ilII** 

### ....EIifieoli.ft'le

### BlIioliRgfllOje<

........**ef¥eGilI'NG~** tit

### that- aFe8-; URless at

### -least eRe

### efffte fa

### II

### B

.. iBg 

### eSIlliitisns 

### is met:} 

### ffB the- flFepsseEf emissiens ifleFeases assseiateEf with



### • Jlfl'ieel,

- fOg&f<! le

.......

### e., .. less 

### thoR /We 

### 'JlY ef the ifldi. idHal BBRattainmem

### flBllHtant; er} the prejeet- 

### efflissisHS iaereases are less theft 

### the sig

### RifieIHlt

# _-..I

... 'IllbIe I 

### iooote<I

... the defiftili•• effIlOje< filediIieoIiea

... ef 

### l!listilIe

_ wileR eeuj>Ied with

## Pfllieetaetual emissistlS deere8:Ses fer. tfte-9&flleflsUttle:Itl:; 'StIftlmeEI-a&thejH6jeetfie£;

...., less

### thoR ill' 

### "'l"f'l te ""'" Ijlft 

### @ [(ej] In applying the de minimis threshold test, ifthe net emissions increases are greater than the significant levels stated in Table I located in the definition ofmajor modification in §116.12 oftbis title, the following requirements apply.
> (I) The proposed facility sball comply with the lowest achievable emission rate (LAER) as defined 

### in §116.12 of this title for the nonattainment pollutants for which the facility is a new major source or major modification except as provided in paragraph (3)(B) ofthis subsection and except for existing major stationary sources that have a potential to emit (PTE) ofless than 100 tpy ofthe applicable nonattainment pollutant. For these sources, best available control technology (BACT) can be substituted for LAER. LAER sban otberwise be applied to each new facility and to each existing facility at which the net emissions increase will occur as a result of a physical change or change in method ofoperation ofthe unit (2) All major stationary sources owned or operated by the applicant (or by any person controlling, controlled by, or under common control with the applicant) in the state must be in compliance or on a schedule for compliancewith all applicable state and federal emission limitations and standards. (3) At thc time the new or modified facility or facilities commence operation, the emissions increases from the new or mod

## 35 TexReg 7698 

## August27, 

## 2010 Texas Register

### Figure: 30 TAC § 116.12(18)(A)
TABLE I 

### MAJOR SOURCEIMAJORMODlFICAnON EMISSION THRESHOLDS

POLLlITANT MAJOR SOURCE SIGNIFICANT OFFSET RA

### 110 designation I 

### tons/year LEVEL' 

### minimum tons/year OZONE (VOC, NOX>' I marginal 100 40 

### 1.10 to I 

# n moderate 100 40 

### 1.15 to I 

### ill serious 

### 50 25 1.20 

### to I 

### IV severe 

### 25 25 1.30 to I CO I moderate 100 100 1.00 

### to I' 

# n serious 50 50 1.00 

### to I' So, 100 40 

### 1.00 

### to I'
PM" I moderate 100 15 1.00 to I' 

### II 

### serious 70 15 1.00 to I' NO: 100 40 

### 1.00 

### to I' Lead 100 0.6 1.00 to I'
I 

### Texas nonattainment area designations as defined 

### in §I0 1.1 (70) ofthis title.

, The significant le",,1 is applicable only to existing major sources and shall be evaluated after netting, unless the applicant chooses 

### to apply nonattainment new source review (NNSR) directly 

### to the project. The appropriate netting triggers for existing major sources ofNOx 

### and VOC are specified 

### in §116.150 of this title (relating 

### to New Major Source or Major Modification in Ozone Nonattainment Areas) and for otherpollutants are 

### equal 

### to the significantlevel listed 

### in this table.

, VOC and No" are precursors to ozone formation and should be quantified individually to determine whether a source is subject to NNSR under §1l6.150 ofthis title. 

### As specified 

### in §1l6.150 ofthis title, for EI Paso County, the NNSRrules apply to sources ofVOC, 

### but not

### to sources ofNOx.

, The offset ratio is specified to be greater

### than 1.00 to 

### I. VOC 

## =volatile organic compounds NOx 

### = oxides ofnitrogen NO, = 

### nitrogen dioxide CO

## =carbon monoxide SO, 

## =sulfurdioxide PM" 

## =particulate matter with an aerodynamic diameter less 

### than or equal to ten microns

, Applies 

### to the NAAQS for nitrogen dioxide <No,).



## 35 TexReg 7896 

## August27, 

## 2010 Texas Register

### Bryan W. Shaw, Ph.D., 

### Chairman Buddy Garcia, 

### Commissioner 

### Carlos Rubinstein, Commissioner 

### Mark R. 

### Vickery, P.G., 

### Executive Director 

## TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas 

### by Reducing andPreventing Pollution


## PUBLIC HEARING ON PROPOSED REVISIONS TO 30 

## TAC CHAPTERS 101 

## AND 116 AND TO THE STATE IMPLEMENTATION PLAN

The Texas Commission on Environmental Quality (commission) 

## will conduct a publichearing to receive testimonyregarding proposedrevisions to 30 Texas Administrative Code (TAC) Chapter 101, General

## Air Quality Rules, §101.1, and Chapter 116, Control of

## Air Pollutionby Permits for New Construction orModification, §116.12 and §116.150; and corresponding revisions to the state implementation plan (SIP), under the requirements ofTexas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, SubchapterB; and 40 Code ofFederal Regulations §51.102 ofthe United States Environmental ProtectionAgency (EPA) regulations concernrng SIPs.

The proposedrulemaking would amend definitions in Chapter 101 to removelanguage regarding specific maintenance and nonattainment areas. Additionally, the proposed rulemaking wouldamend Chapter 116 to removelanguage indicating thatthe one-hour thresholds and offsets are not effective unless the EPA promulgates rules. The proposed rulemaking would also amend Chapter 116 to add a requirement for continued applicability of nonattainment New Source Review until the EPA approves its removalfor areas attaining the
ozone national ambient air

## quality standard. In addition, the proposedrules address issues identifiedby the EPA 

## in its September23, 2009, disapproval notice.

The commission

## willhold a publichearing onthis proposal 

## in Austin on September20, 2010, at 2:00 p.m. in Building E Room 201S, atthe commission's central officelocated at 12100 Park35 Circle. Thehearing is structuredfor the receipt oforal or written commentsbyinterested persons. Individuals maypresent oral statements when called upon in order ofregistration. Open discussion

## will notbe permitted during thehearing; however, commission staffmembers 

## willbe availableto discuss the proposal 30 minutes prior to thehearing.

P.O. Box 13087 • Austin, Texas 78711-3087 • 512-239-1000 • Internet address: www.tceq.state.tx.us primed onrecycled paper

## Persons who have special communication or other accommodation needs who areplanningto attendthehearing shouldcontactCharlotte Hom, Office ofLegal Services at (512) 239-0779. Requests shouldbe made as far in advance as possible.

Written comments maybe submittedto Devon Ryan, Me 

## 205, OfficeofLegal Services, Texas Commission on Environmental Quality, P.O. Box 13087,Austin, Texas 78711-3°87, orfaxed to (512) 239-4808. Electronic comments maybe submitted at: 

## http://wwws.tceq.state.tx..us/rules/ecommentsj. File size restrictions may applyto comments being submittedviathe 

## eComments system. All comments shouldreference Rule Project Number 2008-030-n6-PR. The commentperiod closes September27, 2010. Copies ofthe proposedrulemaking canbe obtainedfrom the commission'sWeb site at 

## http://www.tceq.state.tx..us/nav/rules/propose_adopt.html. Forfurther information, please contactBlake Stewart, 

## Air Permits Division, (512) 239-6931.

# WRITTEN AND ORAL TESTIMONY

## Reference Number



## W-l W-Z 

## W-3 W-4 

## INDEX OFWRITTEN TESTIMONY



## Submitted

## By

Texas IndustryProject The United States Environmental ProtectionAgency ZephyrEnvironmental Corp ZephyrEnvironmental Corp

### 08/27/2010 16:53 FAX 002/005 

# W-l
PoSU [)H,\8! 

### AUSTIN BEUlNG DAUAS

. DlJlAI

Ha'GKONG 

### HOUSTON l.ON[)()N 

### NOY:.ChV NEWYORt: PALO ALTO RIYAOH 

### WASHINaTa-l I(,alhloen

# e Weir TEL +1 713.229.2108 

### FAX + 

### 1 713.22Q.7908 

### kothleell._llflIbakel'botb.com TEL +1713.229,123/1**r~** +1 7IJ.22Q.U22 

### -, bokerbolts.c:om ONE SHEll PlAZA 910 LOUISIANA 

### HOUSTON, T!XAs 

### 77002-4995 

# BAKER BOlTS LLP



## September 27.2010 

## OOSS80.013S 

## BY FACSIMILE Ms, 

## Devon Ryan. Me 205 Office ofLegal Services Texas 

## Commission on Environmental Quality 

## P_O. Box 13087

. Austin. Texas 78711-3087 

## Re: Comments on proposed. Rule ProjectNo. 

## 2008-03Q-116-PR 

## DearDevon: The 

## Texas Industry Project (uTIP"] 

## appreciates 

## the opportunity to 

## prov:lde 

## c;omments on Texas Commission on Enviromnental Quality's 

## proposed revisioDS to 

## the NonattaiMlent Anti-Backsliding Rules. TIP is comprised of 

## 62 companies 

## in the chemical, 

## refining. oil 

## and gas, 

## electronics, forest products, 

## terminal, electric utility. 

## and transportation industries with 

## opennions in Texas. TIP's 

## comments are auaehed. For further

## infonnation. please do not

## hesitate to 

## contact mo.

HOU01:1210095 I

### OS/27/2010 16:53 FAX



## TEXAS INDUSTRY PROJECT COMMENTS ON TCEQ'S NONATTAINMENT ANTI-BACKSLIDING REVISIONS SEPTEMBER 

# 27, 2010 RULE PROJECT No. 

# 2008-030-116-PR I4I 003/005 

# W-1

The Texas IndUstry 

## Project ("TIP") appreciates the opportunity to comment QIl 

### TCEQ 

## Rule Project**2008~30.116-PR.** 

### TIP is 

## comprised of 63 companies In the cbemical, refining, oil and gas, electronics, forest prodUCts, tenninal, electric utility. 

## and transportation industries with operations in

## Texas. I 

## L 

## Summary The proposal would 

## amend sec;tjons 101.1(70). 116.12 (Table I). 

## and 116.150 of Title 30 

## ofthe Texas Administrative Code to 

## cause nonattainmCllI New Source Review (NNSR) 

## requirements to 

## apply to BtCBS 

## designated nOnatlainment for ozone 

## based on those areas' 

## classifications underthe revolted I-hourozone NAAQS. TIP opposes the proposal. The proposal is unncoCS5ary to 

## ensure anti-backsliding for any Teltas ozone nonattainmcnI area, 

## and 

## will be 

## superseded by a 

## pendin& BPA rulemaking. 

# n. Commeots on Prop08ed Revisions A. 

## Area

## Classification Issues The proposal is UMeces!llU)' to 

## ensure anti-backsliding for any TeltBS ozone nonattainment area.

TIP 

### members participating 

### in tb

..

### e commenlS 

## are: Albemarle Corporation, AI1<ema Inc.. Ascend Perfonnll/lCCl Mcerilll. LLC. BASP CorporllliOll. BP. C.11IIICIC Chomicllli. Ltd•• CenterPoint 8nercY Houston Electric, LLC, 

### ChevrtII1 Corporadon, chevron Phillipl Chemicol CODIpaIIY 

### LP. ClTOO 

### Polrt>leum CotpOl'lllion, conoeoPlliJIips. DCP Mldlnom, 

### LLC, Degus.1 En,l-..cd 

### Carbona. LP. Delok Refinlna Lid., Dixie 

### Chemical Compllly. 

### !lie., Dow 

### ChomlOlll ComJllUlY. The DyneII)' Inc., Bille Rock EllDr&)'. I!estmen Chemical ColllJlllllY. E. I. Du Ponl 

### de Nomours " Company. EnlllrJ)' Texu. Enterprise Produeu Oporatinll LLC. Botalon Power Tcxu, ExxooMobil Cbemice1 CompeDY, 

### PI_ Polym

..... LLC, 

# os BioIci..- CorporallOll, HalIlbunoD CompeDy. 

### Hunlllman Corponotion. INElOS NOVA LL.C. I_ntinenllli**Tarmin~i** 

### Compony, In_IOIIal Paper Compony, Imlmedonlll Power. Kinder MllfIIl/I Liquids Tcrminllll. LLC. LANXESS CorporallOll. LBC HD1IItDn. LP. Lyondoll Chomlcal Compll/lY. Momhon Pelroleum Company LL.C, McadWcstv

... Corporedon, Meriool USA. L.L.C•• NRC T

.... PowerLLC. OdlJoli Tonnlllll1. (HOlll\On) LP. Olllllnklna Holdin& USA, Inc_ PelOId

...aRellnln& System,**IDc~** 

### PL Prop)llene. Prexalr. Inc

.. Rohm and H

... Tcxll, IncorporlUOd. Shell 011 Company. Shin,.ch. Inc.. Sterllns Chemical., Inc., Stolthavan HOUSlon Inc.. Suez 8n""l)' North America, TARCA. Tcmpl

..lnlllld Inc.. Tcxas IIIIINmcnll Incorporeted, TPC Croup. 'rota! petrochemioals USA. Ino

.. Union Pe<lflc Roliroad Compolll'. Valero Energy Corporallon. Vopak LoalSllcs North Amerioa,lnc. Westem Rofinll1ll 

### Co., I..P.

HOU02:12D99:liO.3 

## 1

### 09/27/2010 16:53 FAX 

## . Ial 004/005 

# W-l

1. HGB A

.... : Identical Clll5Slfications 

## The 

## HO\lston..Qalveston-Srazoria area (HOB) is classified as a 

## severe ozone nonattalnment 8nl8 

## under bo1h the 

## l-hour and 8-bour NAAQS. 40 C.F.R. § 81.344. 

## Accordingly. the rule is llnnecessary to establish a separate l-hour classification for major NSR 

## in 

## HGB. 2. DFW' Area: 

## Identical Clas.ificatioQ The 

## Dallas-Fan: Worth 

## area (OFW) has 

## a legacy 

## olassification of$Cll'ious under the I-hour NAAQS. 

## .IU1d EPA has proposed to reclassifY the area to serious under the 

## 8·hour NAAQS. 

## 40 C.F.R. § 

## 81.344i 75 

## Ped. Reg. 47,746 

## (Aug. 9, 2010). 

## Accordingly. the rule is unnecessary to 

## establish 8 

## separate l-hour classifioation for major NSR in 

## DFW. 3. BPA Area: Attainmcot 

## For the Beaumont-Porl 

## Arthur area (BPA), EPA has 

## proposed to 

## redesignate the 8r81l10 

## attainment for the 8-hour NAAQS. and to 

## detmnine thatthe uea has attained the I-hour NMQS and 

## need not be 

## subjcct to 

### NNSR. 

## 1S 

## Fed. Reg. 21,514 (May 17. 2010). 

## EPA's 

## final action. 

## ifadopted as 

## proposed, will 

## confirm that 

## SPA need not impose l-hour or any ofthe antibacksliding**requirem~ts.** 

### 4. 

## EI

## Paso Area: Attainment The 

## EI Paso DTe& 

## bas only ever been 

## deslgnated. nonattainment for the I-hour NAAQSJ 

## is currently attaining 

## both the I-hour and the i-hour NAAQS. 

## and 

## will be 

## relicived of NNSR 

## under EPA's 

## currmt proposal 

## on l-bour NNSR anti-backsliding. 40 C.F.R. 

## § 81.344; 

## 7S Fed. Reg. 27.514; 75 

## Fed. Reg. 51,960. 

## 51,964 (Aug. 24. 2010) 

## C'EPA has dotcnnlncd that**1~** 

## hour nonattainmcnt major NSR 

## should not apply to 

### areas 

## designated attainment for the 1991 

## Shour standard. regardloss of the aroa's 

## designation for the I-hour 

## standard at the time of designation for the 8-hour standard. II). 

## Like BPA, Bl Paso has 

## now attaIned the ozone standard, and need not retUrn 

### 10 

## I-hourrequircmmrts under anti-backsliding. B. PeDdine EPA ReluiatiODB Second. the proposal is premature in light ofEPA's cWTently pendlng proposal. 10 

## revise its S·hour NAAQS 

## implementation rule to 

## speclfically require 

## 1-bour NNSR 

## for areas' designated nonattalnmentforthe 8-hour NAAQS 

## and to,provlde for temtination ofI-hour NNSR 

## requirements based on 8-hour NMQS 

## attainment. 75 

## Fed. 

## Reg. 51.960 

## (Aug. 

## 24. 2010). 

## If finalized substantially as proposed. EPA's rulcmaking would fulfill the "if' 

## condition in footnote 6 to 

## Table I of30 Tex. Admin. Cod" § 

## 116.12, causing that provision to 

## require I-hour NNSR undor the circumstances established by 

## EPA'S rule. The purpose ofthe current footnote will be served, and there will be 

## no need to remove It 

## and substltute other criteria than those EPA published in afinal rule.

.

2

### 08/21/2010 16:53 FAX 

## III 005/005 

# W-l

C. Undue Hardsblp to Busln'lIelI Third, thepropcsal could cause slllnlflcant hardship to businesses In the HOB, DFW, BPA, and EI Paso areas that have contributed to ozone attainment. Re-lmposing I·hour NNSR would restore stringent 

## requiremllnts for owners and operators ofnew and modified major statlonlllY sources. One-hour NNSR Was 

### implemented based on oZl.1ne levels in the late 19808, which wen: substantially higher than at the time of 8-hour NAAQS classifications nearly 20 years huer. Ozl.1ne levels today are even lower

## than at 

### the time I.1f8-hour NAAQS classifications. causing I·hour NNSR tl.1 become Increasingly unnecessary. This dramatic improvement in 

### ozone levels can be 

### credited in larie 

## part to the efforts by the sUltll.1nary source sector to reduce emi55ions. Rcitoring I-hourNNSR is both inequitable and unnecessary. 

# m. Conclusion Fl.1r these reasons, the proposed revisions are not justified. TIP urges the Commission notto adl.1ptthe proposal.

HOU02**1~09'i5C** 3 

## 3

### Ssp 27 2010 3:42PM 

## HP LASERJET FAX 

# ," p.2

# W-2
UNIlED STATES ENVIRONMENTAL PAOTEcnoN AGENCY REGIONS 

### 1445 ROSS AVENUE, SUITE 1200 

### DALLAS, 

## TX 76202-2733 

# SEP 2 

# 7 2010 

# §ff11 2000,

Ms. DevonRyan Office ofLegal Services (MC 205) Texas CommissiononEnvironmental Qua1ity 

## P.O. Box 13087 

## Austin, TelCaS 78711-3087 

## RE: EPA Comments on Rule Project

## Ntmiber200S-030-116-PR 

## DearMs. Ryan: 1bank

## youfor providing us the 

## opportunity to 

## :revi.ewand commenton

## the proposedrevisions to 

## 1heprovisions for One-Hour Ozone Ma,jorSource Thresholds and Emission Offsets at Texas Administrative Code (TAC) Title 30, Chapter 116, Control of Air

## Pollution by

## Permits for**N~** 

## Construction 

## or Modification, 

## Sections 116.12 and 116.150 and

## the

## proposed associatedtevisions to the 

## Texas State ImplementationPlan (SIP). This 

## proposedrulemaking revisesthe provisions 

## for One-HourOzone Major 

## Sou:n:eTluesholds and Emi

## s.'ljon Offsets to 

## address the 

## concerns identified 

## in our September 15. 2010, disapproval of

## tileProgmm. (75 FR 56424). 

## Please note 

## 1batthese comments 

## do notconstitute final 

## determinations concerning approvability ofthe 

## revisions

## to 

## the Texas SIP. We are providing these comments to assistthe Texas Commission onEnvironmental Quality (TCEQ) 

## in the development of regulatory

## language.

### Sep 27 2010 3,42PM 

## HP LASERJET FAX p.3

# W-2

Welookforward 

## to working with 

## the TCEQ as youmove 

## forward 

## inresponding 

## to these comments and finaliziDg 

## the 

## IeVisions 

## to the 

## Texas SIP. If

## youhave any questions, please call Mr. StanIeyM. Spruiell ofmy 

## staffat (214) 665-7212. 

## Sincme1y

## yours. 

# -==-.-JG..

-**~~** Thomas-lL 

## Diggs Associ!!tc: 

## Director for 

## Air Programs MultimediaPlanning lIDd

Permitting 

## Division Enclosure



## 2

### Sep 27 2010 3:42PM 

## HP LASERJET FAX



## Enclosure p.4

# W-2

1. 

## Generally. mostofTCEQ'sproposed changes meet 

## federal requirements. These revisions remove the 

## language tbatprecludes TCEQ 

## fromimplementingthe New Source Review 

## (NSR) requirements for the 

## I-hour ozoneNAAQS unless EPA adopts 

## roles to reinstate the I-hour NSRrequirements. TCEQ makes 

## itclearthat NQI1pttsinmem

## NSR (NNSR) appliesbaseduponthe attainment status 

## ofthe 

## area where 

## the 

## source is locatedon the date 

## ofissUance Iatberthan 

### the 

## dAte of 

## submittal ofa completepennit

## application. The 

## comments below indicateitems ofconcc:mwiththe

## proposedIWleProjectNo. 2008-030-1 

## 16-PRthat

## TCEQmust 

## address

## to ensurethat

## these changes 

## will meet 

## applicable 

## federal. requiIements. 2. TCEQ proposes 

## to revise 30 TAC 116. 150(a)to require NNSR

## based upon

. nODl>ttainmem 

## status as ofthe 

## date 

## ofissuance ofthe permit. Itincludes four

exceptions as identified in

## paragraphs (a)(1)-(4). We agree 

## withthese exceptions. However, therule mustbeclear that

## the four exceptions are effective onthe date 

## ofissuanceof the permit.. 

## The 

## change indicatedbelow will address this concern. (a) This section applies 

## to all DeW 

## source review authorizations for new

## colll5tructionor modification offiu:ilities that

## willbe located in any 

## area 

## designated as oonattainmentfor ozone 

## UIIder40 Unfu:d States Code (USC), sections 7401 

## etseq. as of the 

## date ofisswmce ofthepc:rmit, 

## unless the 

## following apply on the

# de ofis,mwpe 

## of the 

## permit: 3. 30 TAC 116.1S0(d)(3)(A) provides that 

## majorstationary llOUlCCS 

## with apoteotial to 

## emit (PlE) 

## less than 100 tpy 

## ofan applicable nonattaimncntpollutantare not requim'l to

## undergo 

## NNSR, ifthe 

## projectincreases are offsetwith aninternal 

## offsctIatio 

## of 1.3 

## to 1. 

## .This provisionimplements section 182(c)(7)

## of the Clean AirAct (CAA) which includes this 

## provisionfor serious and 

## severe o:rone oooattainment areas. This paragraphmustberevised

## to clearly 

## limit its' 

## applicability to serious and 

## severe ozone nonattIimnent

## areas. The change indicated

## belowwill address this 

## concern. (A) Major stationary 

## sources located in a serious or severeozone nonAbjlJ11lll11t

# areawith a PTE ofless than 100 tpy 

## ofan applicable nonpttainmellt

## pollutaIltare notrequiredto 

## undergo nonattaimneatnew 

## sourcereview underthis section, ifthe 

## project 

## increases are offsetwith an internal 

## offsetratio 

## ofat 1east 

## 1.3 to 

## 1.

### Sep 27 2010 3:42PM 

## HP LASERJET FAX p.5

# W-2

4. 30 TAC 1I6.IS0(d)(3)(B) provides that**~or** 

### stati.oDary 

## sources with 

## a PlB greater

## than 100

# tpy ofan 

## applicable nonattaimnentpollutant

## can substitute 

## BACT for 

## LAER, ifthe 

## projectincreases are offsetwith 

## an

## internal offsetratio 

## of 1.3 

## to 

## 1. This provision implements section 

## 182(c)(8) oftbe CAAwhichincludes this 

## provisionfor 

## serious and 

## severe ozone nonattainmcnt

## areas. 

## TCEQ must make the 

## changes described below: A. This 

## paragraph must

## be 

## revised to 

## limit its

## applicability to serious lIIid 

## severe ozone 

## nonattainment areas. B. Because this 

## is a federal requiIemenl 

## under CAA section 182(c)(B) 

## oftbe CAA., 

## therole must specify

## that 

## federal 

## BACT as defined 

## in the 

## CAA 

## as used 

## in the 

## PSD Program shouldbe 

## substituted for LAER.

## UDder this paragraph. not the 

## StateMinor

## NSRBACT.! The changes 

## indicated below

## willaddress these concerns. 

## (B) 

## MeJor statiOnaIY 

## somces located in a maUl! 

## or severeozone 

# nonattainrneM area"with 

## a PTEofgreaterthan 

## or equal 

## to 

## 100 tpy 

## ofall 

## applicable nonattainmenl ponutant 

## can 

## substitute

# federal BACT

# W identified 40 

## TAC 116.16Ofc)(1)(A»for LAER, 

## if

## the project increases are offsetwith 

## an intemaI. 

## offsctratio 

## of

## atleast 1.3 to 

## 1. 

## Internal offsets used 

## intbis mannercan also 

## be appliedto 

### satisfy

## the offsetrequirement.

I 

### See 

### 7S 

### FR. S6424, 

### at**S642~** 

### (September 

### IS, 2010) and 

### 7S FR SS!rnl (September 

### IS, 2010)

# rex- fin1ber 

### InJIarmauOll on 1bebasis 

### :fur

### this comment.


## 2

### consulting 

# • training 

# • data systems 

# W-3

September27, 2010



## Mr. Devon Ryan MC205 Office of Legal Services Texas Commission on Environmental Quality P.O. Box 13087 Austin, Texas 78711-3087 Re: Comments on proposed 30 'lAC Chapter 101 Changes Rule Project Number2008-030-116-PR
Dear Mr. Ryan On behalf of Western Refining, I am submitting some brief comments concerning the Texas Commission on Environmental Quality (TCEQ) proposed changes to SOTAC Chapter 116 Rule, TCEQ Rule Project Number 2008-03D-116-PR.
We agree with the TCEQ proposed changes to 30 'lAC 116.150(a) related to the applicability of Nonattainment New Source Review (NSR). We specifically support the addition of the proposed language in Section 116.50(a)(1) through (4) which establishes criteria upon which new construction and modification of facilities in an area are not subject to nonattainment NSR. We understand that the proposed criteria includes those cases when EPA. has made a finding of attainment, approved the removal of nonattainment NSR requirements from the area, detennined that Prevention 

## of Significant Deterioration (PSD) applies in the area, or determined that nonattainment NSR 

## is not required to assure "anti-backstldlng'.
We understand that the proposed changes are Intended to provide the regulatory language required to allow the state's PSD program to be immediately effective in the Beaumont-Port Arthur 

## (sP,M area (as proposed by 

# EPA in Federal Register dated May 

## 17, 2010 Volume 75, Number 94,EPA Docket 

## 10**No.ePA~AA-2oa&-0932).** 

## We also understand that this language is necessary to allow the state's PSD program to 

### be immediately effective in the EI Paso area upon**EPA~** 

### determination that EI Paso County has attained 

## 1he revoked one-hour ozone standard. This attainment determination for EI Paso was requested by both the TCEa letter dated May 24, 2010 and the Greater EI Paso Chamber of Commerce June 15, 2010 comments submitted to 

# l':5PA Docket 

## 10 No.**1;P~...f\06..0AR":~** 

### concerning the BPA attainment determination.

2600 Via Fortuna, Suite 450 • Austin, Texes 7B746 • PH 512.329.5544 • FAX 512.329.8253 

### www,zeohyrEnY,cQm • lNWW.HazMatAcademy,coDJ

### Mr. Devon Ryan September21,201 0 

### Page 2 of 2

We appreciate TCEO's effort to establish the regulatory language that provides a mechanism to immediately establish PSD as the appropriate federal NSR permitting requirements for those areas where EPA has made the related finding, approvals or determination. We recommend that 

### the final rule adoption include the proposed 116.150(a)(1)-(4) language and any other language required by 

## EPA in order to allow the appropriate PSD air permit requirements to be implemented in a streamlined fashion. We also urge TCEO to work with 

## EPA to act expeditiously to establish the 1 hour ozone standard attainment determination requested for EI Paso County in the June 15, 2010 Greater EI Paso Chamber 

## of Commerce letter and May 24, 2010 TCEOIatlar. We appreciate the opportunity to provide these comments and TCEO's diligent efforts to assure that all regulatory language is in place so that the appropriate PSD air permitting requirements can 

## be immediately effective In EI Paso County and other areas as applicable. Please feel free to call me concerning these comments at 512-879-6618. 

## Sincerely, ZEPHYR ENVIRONMENTAL

# COAPORlTlON

# '{~) t\)

# \v--

Karen N.T. Olson, P.E. Principal

Cc: Western Refining Greater EI Paso Chamber 

## of Commerce Walker Williamson, TCEO

### consulting 

# • training 

# • data systems

# W-4

September 27. 2010



## Mr. Devon Ryan MC20S Office of Legal Services Texas Commission on Environmental Quality 

# P.O. Box 13087 Austin, Texas 78711-3087 Re: Comments on proposed 30 TAC Chapter 101 Changes TCEQ Rule Project Number200B-030-116-PR
Dear Mr. Ryan On behalf of Western Refining, I am submitting some brief comments concerning the Texas Commission on Environmental Quality (TCEQ) proposed changes to 30 TAC Chapter 101 Rule, TCEQ Rule Project Number 2008-030-116-PR. We understand that TCEa's intends to "prevent future confusion over designations and classifications and their related applicability thresholds and emission offsetreql,jirements· with the proposed changes to the definition 

## of non-attainment area (30TA0101.1('7O)lwhich remove the specific definitions in Chapter 101 and only refer to the federal regUlation for identification of those areas. While we support the TCea intent for clarity In the definition 

### of federally applicable designations and classification. 

## we do not believe simply referencing those federal regulations will necessarily accomplish the desired goal to prevent confusion orclalify requirements.
We understand that the commission "regularly posts information regarding the designation process for new National ambient air quality standard (NMQS) on the TCEa public Web 

## siteD. However we do not believe that the existing TCea website postlngs 

## will prevent "future contusion-. -Future confusion" will be mitigated 

## If. in conjunction with the proposed 101.1 (70) definition change, the TCEa posts and maintains the necessary and current infonnation related to designations and classifications and their related implementation and timeline requirements. We specifically request that in the final rule adoption that TCEa provide the clarity needed by 

### specifying in its response to comments additional items related to nonattainment issues that will 

### be maintained on its public web site.'VY' specifically recommend the following items be 

### prOVided, in an easy access form, on TCEa public website:

2600 Via Fortuna, 

### Suite 450 • 

### Austin. Texas 78746 • PH 512.329.5544 • FAX 512.329.8253 

### www.ZeohyrEn

....cQm • www.HazMatAcademy.com

### Mr. Devon Ryan 

## September 

## 27. 2010 Page 2 of 3



## 1. A specific TCEO**pos~ion** 

## identified as responsible for assuring that this web page is kept up to date for both regulatory and permitting issues (for example the Chief Engineer orthe Air Permits Division Director).
2. The web page location and responsible position (with an email address and phone number) be identified on both the Air Pennits and Chief Engineer home page for ease 

## of access. 3. Before adoption of the proposed rule changes, that this web page be established and available with complete and up-to-date information which provides a one-stop reference to nonattainment designation, regulatory and pennitting guidance and issues. We request that the website include at least the following:

a. The current designations and classifications for all maintenance and nonattainment areas (referred to as "all areas· in the remainder of these comments) for all effective NMOS (including both the 1 hr and B hr ozone standard) including the effective date 

## ofany such designation. b. The historical designations and classification of all areas, the effective date 01 those designations changes, and the regulatory citations that established those designation changes and effective dates.

c. Any findings, approvals, or detenninations, which clarify the non-applicability of Nonattainment New Source Review (NSR) review (as provided for in the proposed**116.1~19~;** 

## d. Future proposed NMOS changes and designations (such as the pending new B hour ozone standard) and the regulatory and air quality pennitting timelines associated with those designation changes.

e. Identification and links to all documents supporting the infonnation summarized on this web page. f. Identification and links to all documents establishing air quality pennltting reqUirements and timelines related to any NMOS change, re-designation, finding, approvals or detenninations. g. A Hot Line number which provides one stop access 

## to answers related to nonattainment designation and related regulatory and air quality permitting questions. 

# W-4

## Mr. Devon Ryan September

# 27, 2010 Page 3 

### of 3

Please note that, In addition to the needed clarity concerning nonattainment designations, clarity is needed concerning related applicable air permit requirements. Therefore, it Is absolutely essential, in conjunction with this rule adoption, that TCEQ adopt 116 regulatory language, consistent with the proposed 116.150(a), which provides for 

## ,EPA findings, approvals and determinations related to an area's nonattainment status. Separate comments are being provided which support the proposed 116.150(a) related to nonattainment new source review applicability. We appreciate the opportunity to provide these comments and TCEQ's effort through Web site references to bring clarity to this highly complex and continuously changing area of nonattainment issues. Please feel free to call me concerning these comments at 512-879-6618.
Sincerely, 

## ZEPHYR ENVIRONMENTAL CORPORATION

# \~~~.~ Principal

Cc: Western Refining 

# W-4

### INDEX OF ORAL TESTIMONY Public Hearing September 20, 20 I0_ in Austin

TCEQ received no oral testimony for this rulemaking

# ()

HEARING OFFICERREPORT

I am 

## the hearing officer assigned to 

## conduct the public hearing regarding One-hour Ozone Major Source Thresholds 

## and Emission Offsets, Rule ProjectNumber: 2008-030- 

# 116-PR. A public hearing was scheduled for September 20, 2010, at 

## 2:00 p.m. 

## in Building E Room 201S, atthe commission's central office located at 

## 12100 Park 35 Circle, Austin, Texas. At 

## 1:30 p.m., the room 

## was open and TCEQ 

## staffmembers were available to 

## discuss the 

## proposal At 2:00 p.m., TCEQ·

## staffand a court reporter were present 

## and 

## ready to open the 

## hearing for public comment. After 

## waiting for 15 minutes, no one had 

## arrived to make comments on the record. Therefore, the public 

## hearing 

## was not formally opened for comment

## and atranscript

## was notprepared.

# ~fficel>= '1-'12-/0 Date signed

# EVALUATION OF TESTIMONY

# Texas Commission on Environmental Quality INTEROFFICE MEMORANDUM To: 

## Thru:

From:



## DocketNo.: Commissioners LaDonna Castafiuela, ChiefClerk MarkR. 

## Vickery, P.G., Executive Director RichardA. 

## Hyde P.E.,

# DeputyDirector~ Office ofPermitting and Registration

2008-1631-RUL Date: 

## January 21, 2011

Subject: 

## CommissionApprovalfor Adopted Rulemaking Chapter 101, General Air 

## QualityRules Chapter 116, Control ofAir PollutionbyPermits for New Construction or Modification One-hour Ozone Major Source Thresholds and Emission Offsets Rule ProjectNo. 2008-030-116-PR

Backgroundand reason(s) for the rulemaking: In 

## implementing the 1997 eight-hour ozone national ambient air 

## quality standard (NAAQS) the United States Environmental ProtectionAgency (EPA) finalized rules (known 

## as the Phase I Rule) that did not require regulated entities to continue to use the more stringent major source thresholds and emission offsetrequirements ofthe one-hour ozone NAAQS that previously applied to them when implementing new source review (NSR) and Title V permitting (referred to later in this 

## document as the EPA's NSRpermitting anti-backsliding requirement). The EPA's Phase I Rule for implementing the 1997 eight-hour ozone NAAQS was challenged on several grounds, including the NSR permitting anti-backsliding requirement. The District of Columbia Circuit Court of Appeals issued its opinion in 

## South CoastAir Quality Management District v. Environmental ProtectionAgency, on December 22, 2006, vacating the Phase I Rule, which it later amended on June 8, 2007, to limit the vacatur to those parts ofthe rule that were successfully challenged. The mandate (the order ofthe courtto enforcethe decision) was issuedby 

## the court onAugust 29, 2007, and the United States Supreme Court denied the appeal on January 14,2008. After the courtvacatedthe Phase I Rule and amended its opinion providing for partial vacatur and remand of

## the Phase I Rule, the EPAissued a guidance memo on October 3, 2007, documenting the effect ofthe court's ruling to restore NSR applicabilitythresholds and emission offset requirements under the one-hour ozone standard, and stating that it intended to undertake rulemaking to conform its NSR rules to the court's decision. The memo also noted that while the EPA was working onrulemaking, it strongly encouraged states to comply with the court decision "as quickly as possible." The EPA representatives later verbally told the TCEQ staff

## that the 

## South Coast decision was 

## selfimplementing and did not require rulemaking by the EPA to be effective. This position has been reiteratedin aletterto the TCEQ regarding the issuance ofaprevention ofsignificant deterioration and nonattainment NSR (NNSR) air 

## quality permit to Calpine Deer Park Energy Center, documenting the EPA's concerns regarding the permit issued by the TCEQ, which have not yet been resolved. However, the EPAhas continued to statepubliclythat it is inthe process ofdrafting 

## rules to address the 

## South Coast decision, and in 

## particular the NSR permitting anti-backsliding

## Commissioners Page 2 January 21, 2011 Re: DocketNo. 2008-1631-RUL requirement, which mayor may not include action or discussion regarding the appropriate implementation date. Because the one-hour ozone standard has been revoked, the EPA is no longer making redesignations or reclassifications under this 

## standard. However, the EPA is making determinations under its Clean Data Policy that areas are currently attaining the one-hour ozone NAAQS. The EPA has indicated that states must continue to meet the obligations for one-hour NSR. Currently, the EPA is developing two proposed rules to address the Court's vacatur and remand. These proposed rules will 

## address how the one-hour obligations will 

## continue to apply under the EPA's anti-backsliding rule (as interpreted by 

## the Court) where the EPA has made a determination that the area attained the one-hour ozone NAAQS by its attainment date. One possible outcome from the EPA rulemaking on this issue may be to 

## direct states that want to remove one-hour ozone nonattainment NSR requirements to submit state implementation plan (SIP) revisions demonstrating that removing one-hour ozone nonattainment NSR requirements will

## notinterferewith attainmentormaintenance ofthe ozoneNAAQS. ' On June 10, 2005, the TCEQ submitted amendments to §116.12 and § 116.150 to the EPA as revisions to the NSR SIP. On 

## September 15, 2010, the EPA published notice of the final disapproval of these revisions to the Texas SIP (75 

## Federal Register 56424), together with proposed disapproval of rules adopted l;>y the commission which were submitted to EPA on February 1, 2006. This rulemaldng and the companion rulemaking (Rule Project No. 2010-008- 116-PR) will 

## address those sections submitted as revisions to the NSR SIP and subsequently disapprovedbythe EPA Additionally, on October 20, 2010, EPApublished a

## final rule to approve the redesignation ofthe Beaumont-PortArthur (BPA) 1997 eight-hour ozone nonattainment area to attainment, and clarify 

## EPA's previous approval ofthe El Paso § 110(a)(l) maintenance plan for the 1997 eight-hour ozone standard (75 

## FederalRegister64675, October 20, 2010). 

## This final rule noted EPA's new position regarding NSR anti-backsliding and whether one-hour ozone major source thresholds and emission offset requirements continue to apply in an area. Therefore, althoughthe Texas SIP has always applied PSD in an area upon redesignation, the commission is adopting changes to 30 TAC Chapter u6 to make clear that PSD applies once an area has been redesignated to attainment for a particular criteria pollutant. 

## This is an issue of extreme importance to the commission, the regulated community, and the public, and there should be no room for ambiguity or argument. In 

## an effort to ensure that TCEQ regulatory requirements regarding the NNSR permitting program meet the requirements of the Federal Clean Air Act 

## (FCAA) and are approvable into the SIP, the commission is adopting an amendment to provide clarity andeliminate any deficiencies thatwouldprevent approval oftherule changes.
Scope oftherulemaking: A) Summaryofwhatthe rulemaking

## will do: The rulemaking would amendthe definitions in Chapter 101 to remove language regarding specific maintenance and nonattainment areas and provide direction regarding the federal one-hour ozone standard; amend Chapter 116 to remove language indicating that the one-hour thresholds and offsets are not effective unless the EPA promulgates rules; and amend Chapter 116 to add a requirement for continued applicability ofone-hour NNSR until the EPA approves its removal for areas attaining the ozoneNAAQS. B) Scoperequiredbyfederal regulations or state statutes:

## Commissioners Page 3 January 21, 2011 Re: DocketNo. 2008-1631-Rill

This rulemaking would change the definitions ofthe terms maintenance area and nonattainment area in Chapter 101 by removing language regarding specific areas and referencing the definitions in the federal rule. Also, itwouldrevise §116.150 to apply the requirements ofthis 

## section as ofthe date ofissuance ofthe permit rather than the· date when the permit is declared administratively complete. The rulemaking would remove language stating that one"hour ozone thresholds and offsets 

## willnot be required unless the EPApromulgates rules. Additionally, it would addlanguage to Chapter 116 that makes clear that areas subject to NNSR requirements remain so until the EPA approves removal. C) Additional staffrecommendations thatare not required

## byfederal rule or state statute: This rulemaking wouldmake additional nonsubstantive edits andellanges to references

.

. Statutory authority:

In addition to the general authority in Texas Water Code, -§§ 5.102,5.103, and 5.105 imd Texas Health and Safety Code ('IHSC), § 382.002 and § 382.017, the authority is as follows: THSC, § 382.011, concerning General Power and Duties, which authorizes the commission to administer the requirements of the Texas Clean Air Act'(TCAA); THSC, § 382.012, concerning State Air 

## Control Plan, whiell authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state air; THSC, § 382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue permits for construction offacilities that emit air

## contaminants; THSC, § 382.0513, concerning Permit Conditions, which authorizes the commission to establish and enforcepermit conditions consistent with THSC, Chapter 382; THSC, § 382.0518, concerning Preconstruction Permit, which requires that a permitbe obtained fro.m the commission priorto new construction or modification ofan existing facility; and THSC,§ 382.055, concerning Review and Renewal ofPreconstruction Permit, which provides the requirements for renewal ofpreconstruction permits. Effectonthe: A) Regulated community: Due to decreased thresholds, sources may be more likely to be subject to federal NSR nonattainment review and some may be subject to retroactive review. If 

## a facility is required to have afederal NSRpermit, the cost

## 'willbe approxinlately one-halfmillion dollars ormore. B) Public: 

## Members of the public working or residing in nonattainment areas may benefit due to reduced emissionsresulting from more stringentpermitting requirements. C) Agencyprograms: There should notbe anyimpacton agencyprograms. Stakeholdermeetings: No stakeholder meetings have been held. However, background documents related to this 

## rulemaking have been posted on TCEQ's external website. Also, standard notice ofthis 

## action and an opportunity for comment was provided after proposal. A public hearing on this rule proposal was sc1leduled for September 20, 2010, however no comments were received.

## Commissioners Page 4 January 21, 2011 Re: DocketNo. 2008-1631-RUL



## Public comment: Industry co=entedthatthe rulemakingwas unnecessaryto preventbacksliding; wouldbe supersededby a rulemaking from the EPA; andwouldcreate anunnecessaryhardshipbusiness. Industryalso co=entedthatremoval ofspecific definitions andreferencingfederal regulations would not accomplish the stated goal ofreducing confusionovernonattainment area designations. TheEPAmade several requests for specific changes in §116.150 to clarify

## theintentoftherule. Thesechanges are summarizedinthe "Significant changes from proposal" sectionbelow. 

## Significantchangesfrom proposal: As 

## the result ofco=ents receivedfromthe EPAontheproposal ofthese amendments staff 

## reco=ends changes to thefollowing:

. § 116.150(a)(1)-(4) to make clearthatthe conditions onwhichthese exceptions arebasedmust

.existon the date ofissuance ofthepermit;

§ 116.150(d)(3)(A) to make clearthatthis 

## exception only applies in a serious orsevere ozone nonattainment area; and § 116.150(d)(3)(B) to make clearthatthis 

## exception only applies 

## in a serious or severe ozone nonattainment area andto specifically statethatthebest available contr9ltechnology (BACT) equivalentrequiredbythe ruleis federal BACT

## as identifiedin § 116.160(c)(1)(A). Also, as the result ofstaffco=entonthis rule, the commission

## is removing the language "to preventanti-backsliding" in § 

## 101.(70)andreplacing itwith ''forthe purposes ofanti-backsliding" sincethe intentofthe rule

## is to preventbacksliding and promote anti-backsliding. Additionally, the commission

## is making a changefrom the proposal to remove the second sentence offootnote 3 ofTableI in § 116.12(18) regarding theEl Paso ozone nonattainmentarea. As 

## the result ofthe EPA's 

## final noticeregarding the Beaumont/PortArthur ozone nonattainment area redisignation, whichclarifiedtheEPA's approval of

## the ElPaso area's eight-hour ozone nonattainmentmaintenanceplan, therequirementfor ElPaso infootnote 3 

## is no longernecessary.


## Potential controversial concerns andlegislative interestremaining afterproposal andpublic comment: TheEPAhas proposedfederal rulemaking andhas redesignatedthe Beaumont/PortArthur area as attainmentfor the one-hour standard reducing the likelihood ofpublic controversy regarding these amendments. 

## Does 

## this rulemaking 

## affect any currentpolicies orrequire development ofnew policies? Although not an official agency policy, the Air 

## Permits Division (APD) currently requests, that permit applicants evaluate permitting requirements based on the one-hour ozone major sOurce thresholds and emission offsetrequirements. 

## Whatarethe consequences if

## this rulemaking does notgoforward? Are 

## there alternatives to rulemaking? Language in Chapter 116 

## will continue to be interpreted as limiting 

## the TCEQ's ability to require evaluation ofNSRpermit applications under the one-hour ozone 

## standard. The EPA

## will continue

## Commissioners Page 5 January 21, 2011 Re: DocketNo. 2008-1631-RUL

to make adverse co=ents related to specific NSR permit actions and federal delegation ofNSR permittingto theTCEQ

## will bejeopardized. Key

## points in adoptionrulemakingschedule: 

## Texas Registerproposalpublication date: August 27, 2010 

## Anticipated 

## Texas Registerpublication date: February 25, 20111 

## Anticipated effective date: March 3, 2011 

## Six-mQnth 

## Texas Registerfiling deadline: February 28, 2011" 

## Agency contacts: Blake Stewart, Air Permits Division, 239-6931 Terry Salem, EnvironmentalLaw Division, 239-0469 Janis Hudson, Environmental 

## LawDivision, 239-0466 Devon Ryan, Texas Register Coordinator, 239- 6090

cc: ChiefClerk, 2 copies Executive Director's Office SusanaM. Hildebrand, P.E. Kevin Patteson. Curtis Seaton AshleyMorgan Office ofGeneral Counsel Blake Stewart Devon Ryan "

## Texas Commissionon Environmental Quality Chapter 101

- GeneralAir Quality Rules Rule Project No. 2008-030-n6-PR
TheTexas Commission on Environmental Quality (commission, agency, orTCEQ) adopts the amendmentto §101.1. Pagel

The amendmentto §101.1 is adopted with changes to the proposedtext as published in the August 27,2010, issue ofthe Texas Register (35 TexReg 7676) and willbe republished.

The amendmentto §101.1 willbe submittedto the United States Environmental ProtectionAgency (EPA) as arevisionto the stateimplementationplan (SIP).



# Background and Summary ofthe FactualBasis for the Rule The EPArules implementingthe 1997 eight-hour ozone standard did not require regulated entities to continueto usethe more stringent major sourcethresholds and emission offsetrequirements ofthe one-hourozone standard that previouslyapplied to themwhen implementing New Source Review (NSR) andTitleVpermitting forthe 1997 eight-hourozone standard. The EPArule (known as Phase I) was successfully challenged inSouth CoastAir QualityManagementDistrictv. EPA (South Coast) 472 F.3d 882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying thatthevacaturwas limitedto the issues on which the court granted the petitions for review). The EPAhas interpretedthe court ruling as restoring NSRapplicability thresholds and emission offsetrequirements underthe one-hourozone standardto preventbacksliding. The

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule ProjectNo. 2008-030-116-PR Page 2



# South Coastdecisionwas upheldbythe SupremeCourt onJanuary 14, 2008. TCEQ is adopting concurrent amendments to 30TAC Chapter 116, 

# Controlof AirPollution by 

# Permits forNew Construction or

# Modification, to make clearthe applicability ofthe major sourcethresholds and emission offsetrequirements.

Additionally, in orderto preventfuture confusion overdesignations and classifications andtheir related applicabilitythresholds and emissions offsetrequirements, TCEQ is making changes to the definitions in §101.1(54), concerning maintenance area, and §101.1(70), concerning nonattainment area. Because maintenance and nonattainment

areas andtheirboundaries are subjectto changebased only on federal actions, this amendment will eliminate references to specific maintenance andnonattainment areas in favor ofa more general definitionthatindicates the federal regulations that define these areas and the federally applicable designations and classifications. 

# In orderto

ensurethatthe publichas access to up-to-dateinformation regarding the specific descriptions ofnonattainment and maintenance areas, the commission regularlyposts information regardingthe designationprocess for new National AmbientAir 

## Quality Standard (NAAQS) on the TCEQpublicWeb site.

Staffhas previouslypresentedthis rule amendment (Rule Project2008-030-116-PR) to the commission for consideration. Atthe February 25, 2009, commissioner's agenda, the commission remandedthe ruleprojectto the executive director's staffin

## Texas Commission on Environmental Quality Chapter 101

- GeneralAir Quality Rules Rule Project No. 2008-030-116-PR Page 3

anticipation ofadditional direction or actionby the EPA, becauseEPAcontinuedto indicate in 

## various federal notices its intentto complete rulemaking regarding NSR antibacksliding requirements after the 

## South Coast decision. EPA's proposed rule to implementthe 1997 eight-hour ozone NAAQS revision on subpart 1reclassification and anti-backsliding provisions underthe former one-hour ozone standard was published in theJanuary 16, 2009, 

## FederalRegister, buthas notyetbeen finalized. This rulemaking

removes language regarding the exemptions from nonattainment new source review (NNSR) thatwere vacated by

## South Coast.

On September23, 2009, the EPApublished notice ofthe proposed disapproval ofpast revisions to the Texas NNSR SIP (74 

## FederalRegister48467) thatare relatedto this rule amendment, andfinalized this disapproval on September 15, 2010 (75 

## Federal Register56424). Additionally, on October 20, 2010, EPApublished a final rule to approve the redesignation ofthe Beaumont-PortArthur (BPA) 1997 eight-hourozone nonattainmentareato attainment, and clarifyEPA's previous approval ofthe EI Paso §1l0(a)(1) maintenance plan for the 1997 eight-hour ozone standard (see 75 

## Federal Register64675, October 20,2010). This final rule noted EPA's newposition regarding NSR anti-backsliding and whetherone-hourozonemajor sourcethresholds and emission offsetrequirements continue to apply in an area. EPAnoted "afterfinal redesignationto attainment for the 1997 eight-hourozone standard, EPAdoes not require the continued application ofone-hour anti-backsliding nonattainmentNSR, if

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 2008-og0-116-PR Page 4

Texas interprets its SIP as applying prevention ofsignificant deterioration (PSD) to BPA in these circumstances" (See 75

## FederalRegister 64675 and 64677, October20,2010). The EPA also clarified that, with respectto El Paso, "EPAhas had further opportunityto considerthe applicable statutory and regulatory provisions and the decision in South Coast

.... As 

## a result, weno longer believe thatthe CleanAirAct requires a separate 1100) analysis to replace one-hournonattainment NSRwith PSD once an areahas been redesignated to attainmentfor the 1997 eight-hour ozone standard, orhas an approved 110(a)(I) maintenance planforthat standard. 

# In sum, we believe thatthe approach to the nonattainmentNSR/PSD transition that we are adopting here with respectto BP A should also be extended to EI Paso. Thus, as long as the Texas NSR SIP is clearthatthe PSD SIP requirements apply to an area such as EI Paso, then that is all that is required by EPA" (See 75 

## FederalRegister 64675, 64677, October20, 2010). The commission appreciates this clear statementfrom EPA, and agrees thatthe SIP shouldbe clear on this issue. Therefore, as discussed in this preamble, although the Texas SIP has always applied PSD in an area upon redesignation, the commission is concurrently adopting changes to Chapter 116 to make clearthatPSD applies once an areahas been redesignated to attainment for a particular criteriapollutant.

The concurrentamendments to Chapter 116 confirm thatthe BPA areais no longer subjectto NNSR. As 

## discussedpreviously in this preamble, on October 20, 2010, EPA publishedthe redesignation oftheBPA areato attainmentforthe 1997 eight-hourozone

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 2008-030-n6-PR
NAAQS, and a determination that the BPA areahad attainedthe one-hour 

# owne Pages

NAAQS. In this action, EPA determinedthat the BPA areaneednotbe subjectto NNSR

as an anti-backsliding requirement. Thus, underthe amendment to §n6.1so(a)(I), the BPAareais not subjectto NNSRfor eitherthe one-hourozone or 1997 eight-hour ozone NAAQS. Additionally, the concurrent amendments to Chapter n6 confirmthat the EI Paso area is no longer subjectto NNSR. OnJanuary 15,2009, EPApublished its approval ofa maintenance planforthe EI Paso areaforthe 1997 eight-hour 

# owne standard. As 

## discussedpreviouslyinthis preamble, in EPA's October20,2010, action forthe BPA area, EPA stated that "we no longerbelieve that the CleanAirActrequires a separate BOO) 

## analysis to replace I-hournonattainment NSRwith PSD once an area has

... an approved no(a)(I) maintenanceplanfor that standard" (see 75 FederalRegister 64677). Taken together, these statements reflect an EPA determination thatNNSRis no longerrequiredforpurposes ofanti-backsliding for the EI Paso area. Thus, underthe amendment to §n6.1so(a)(4), the EI Paso area is not subjectto NNSRfor eitherthe one-hour ozone or 1997 eight-hour ozone NAAQS.

This is an issue ofextreme importance to the commission, the regulated community, andthe public, and there shouldbe no roomfor ambiguity or argument. In an effortto

ensurethat TCEQ regulatory requirements regarding the NNSRpermittingprogram meetthe requirements ofthe Federal CleanAirAct (FCAA) and are approvable into the SIP, the commission is adopting an amendment to provide clarity and eliminate any

## Texas Commission on Environmental Quality Chapter 101

- GeneralAir Quality Rules Rule Project No. 2008-030-n6-PR

deficiencies that would prevent approval ofthe rule changes.



# Section Discussion §101.1, 

## Definitions Page 6

The commission is amending the definition ofmaintenance areain §101.1(54). This amendment removes the specific descriptions ofmaintenance areas withinthe state in favor ofa more general definitionthat makes clearthat these areas are designatedby federal action. Similarly, the commission is amending the definition ofnonattainment

areas in §101.1(70) to remove all references to specific nonattainment areas in §101.1(70)(A)

- (G) and retain those parts ofthe definitionthat referto federal regulations andthe 

## FederalRegister. These changes help ensure that when changes are made to maintenance areas and nonattainment areas as a result offederal action, these rules will not be rendered incorrect. Also, forthe one-hourorone NAAQS, the designations and classifications in 40 Code ofFederal Regulations (CFR) Part 81 were retainedby

## EPAfor purposes ofanti-backsliding (See 70

## FederalRegister44470, August 3, 2005). Upon determinationbyEPAthat anyrequirement is no longer requiredfor purposes ofanti-backsliding, the requirementwill no longer apply. The commission is also removing the language "to prevent anti-backsliding" and replacing it with "forthe purposes ofanti-backsliding" sincethe intent ofthe rule is to prevent backsliding and promote anti-backsliding. Any revision to a SIP that could interfere with

or does not complywiththe FCAA andthe SIPbecause it has the effect ofmakingthe

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 2oo8-030-116-PR Page 7

approved SIPless stringent may be considered as "backsliding" from those requirements and would notbe approvablebythe EPA. Additionally, the definition ofreportable quantity contains references to §101.1(70) in §101.1(88)(A)(i)(I1I)(-a-), (-c-), (-w-), (-pp- ), and (-zz-) thatwouldbe incorrectbased onthe amendments to §101.1(70). The commission is amending §101.1(88) to correctthese references.



# Final Regulatory ImpactAnalysis The commission invited public commentregarding the draft regulatory impact analysis determination during the public commentperiod, but no comments were received. The commission reviewed the rulemaking inlight ofthe regulatory impact analysis requirements ofTexas Government Code, §2001.0225, and determinedthatthe rulemaking does not meetthe definition ofa major environmental rule as defined inthat statute, and in addition, ifit did meetthe definition, would not be subjectto the requirement to prepare a regulatory impact analysis.

Amajor environmental rule means a rule, the specific intent ofwhich is to protect the environment orreduce risks to humanhealthfrom environmental exposure, andthat may adversely affect 

## in a material waythe economy, a sector ofthe economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe
state or a sector ofthe state. The specificintent ofthe revisions are to addreferences to federal regulations in certain definitions that are duplicative with federal regulationthat

## Texas Commission on Environmental Quality Chapter 101

- General Air QualityRules Rule Project No. 2oo8-o30-n6-PR Page 8

the state has no authorityto legally change, andto correctreferences inthe definition of reportable quantity. These changes will not adversely affectthe economy, a sector orthe economy, productivity, competition,jobs, the environment, orthe publichealth and safety ofthe state or a sector ofthe state in a material waybecausethey are administrative in nature.

Additionally, evenifthe rule metthe definition ofa major environmental rule, the rulemaking does not meet any ofthe four applicability criteria for requiring aregulatory impact analysis for a major environmental rule, which are listed inTexas Government Code, §20010022s(a). Texas Government Code, §20010022S, applies onlyto a major environmental rule, the result ofwhich is to: 1) exceed a standard setby federal law, unless the rule is specificallyrequiredby state law; 2) exceed an express requirement of
statelaw, unless the ruleis specificallyrequiredby federal law; 3) exceed a requirement ofa delegation agreement or contractbetween the state and an agency orrepresentative ofthe federal governmentto implement a state and federal program; or4) adopt a rule solelyunderthe general powers ofthe agency instead ofunder a specific statelaw.

The adopted rule wouldimplementrequirements ofthe FCAA. Under 42 United States Code (USC), §7410, each state is requiredto adopt and implement aSIP containing adequate provisions to implement, attain, maintain, and enforce theNAAQS withinthe
state. While 42 USC, §7410 generally does not require specificprograms, methods, or

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule ProjectNo. 2008-030-116-PR Page 9

emission reductions in orderto meetthe standard, state SIPs mustinclude specific requirements as specifiedby42 USC, §7410. Theprovisions ofthe FCAArecognize that
states are inthebestpositionto determine what programs and controls are necessary or appropriate in orderto meetthe NAAQS. This flexibility allows states, affectedindustry, andthe public, to collaborate on thebestmethods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a programthatmeets the requirements of42 USC, §7410. States are not free to ignorethe requirements of42 USC, §7410, and must develop programs to assure thattheirSIPs providefor implementation, attainment, maintenance, and enforcementofthe NAAQS withinthe
state. One ofthe requirements of42 USC, §7410 is for states to revise theirplans as necessaryto take account revisions ofthe NAAQS. The rule revisions will alignthe state rules withfederal requirements thatthe state has no authorityto change, sincethe FCAAreserves all authority concerning designations and classifications for the EPA only, in additionto correctinginternal references inthe rules

The requirementto provide a fiscal analysis ofregulations inthe Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intent ofSB 633 was to require agencies to conduct a regulatory impact analysis of extraordinaryrules. These are identified in the statutorylanguage as major environmental rules that

# will have a material adverse impact and will exceed a

## Texas Commission on Environmental Quality Chapter 101

- General Air QualityRules Rule Project No. 2008-030-n6-PR Page 10

requirement ofstatelaw, federal law, ora delegatedfederal program, or are adopted solelyunderthe general powers ofthe agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimatefor SB 633 that concluded "based on an assessment ofrules adoptedby the agencyinthe past, it is
not anticipatedthat the bill will have significant fiscal implications for the agency due to its limited application." The commission also notedthatthe numberofrules thatwould require assessment underthe provisions ofthe bill was not large. This conclusionwas based, inpart, on the criteria set forth in the billthat exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law.

Because ofthe ongoing needto meet federal requirements, the commission routinely
proposes and adopts rules incorporating ordesignedto satisfy specific federal requirements. The legislatureis presumedto understandthis federal scheme. 

# Ifeach rule proposedby the commission to meet a federal requirementwas consideredto be a majorenvironmental rule that exceeds federal law, then each ofthose rules would require the full regulatory impact analysis (RIA) contemplated by SB 633. This conclusionis inconsistentwiththe conclusions reachedby the commission 

## in its cost estimate andby the Legislative Budget Board (LBB) inits fiscal notes. Sincethe legislatureis presumedto understand the fiscal impacts ofthe bills it passes, andthat presumptionis based on information providedby state agencies andthe LBB, the commissionbelieves that the intent ofSB 633 was only to requirethe full RIAfor rules

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule ProjectNo. 2008-030-116-PR Page 11

that are extraordinary in nature. Whilethis rule mayhave abroad impact, that impactis

no greaterthan is 

## necessary or appropriate to meetthe requirements ofthe FCAA, and in fact creates no additional impacts sincethe rule does not exceedthe requirement to attain and maintainthe NAAQS. Forthesereasons, this rule falls underthe exceptionin Texas Government Code, §2001.0225(a), because it is 

## requiredby, and does not exceed, federal law including the approved SIP. In addition, these rules do not exceed any contractbetweenthe state and afederal agency.

The commission has consistently appliedthis constructionto its rules since this statute

was enacted in 1997. Since that time, the legislature has revisedthe Texas Government Code, butleft this provision substantiallyunamended. It 

## is presumedthat "when an agency interpretation is in effect atthe time the legislature amends the laws without making substantial change inthe statute, thelegislature is deemedto have acceptedthe agency's interpretation." 

# (CentralPower & 

# LightCo. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), 

# writdeniedwithpercuriam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); 

# Bullockv. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no 

# writ). 

# Cf. Humble Oil & 

# Refining Co. 

# v. Calvert, 414 S.W.2d 172 (Tex. 1967); 

# Dudney v. State FarmMut. AutoIns. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); 

# Southwestern LifeIns. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000,

# pet. denied); and 

# CoastalIndust. WaterAuth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).)

## Texas Commission on Environmental Quality Chapter 101

- General Air QualityRules Rule ProjectNo. 2008-030-116-PR Page 12

The commission's interpretation ofthe RIArequirements is also supportedby a change made to the.Texas Administrative ProcedureAct (APA) bythe legislaturein 1999. In an attemptto limitthe number ofrule challenges based uponAPArequirements, the legislature clarifiedthat state agencies arerequiredto meetthese sections oftheAP A againstthe standard of"substantial compliance" (Texas Government Code, §2001.03S). Thelegislature specificallyidentified Texas Government Code, §2001.022S asfalling underthis standard. As 

## discussedinthis analysis and elsewherein this preamble, the commissionhas substantially compliedwith the requirements ofTexas Government Code, §2001.022S.

The rule implements requirements ofthe FCAA, specifically42 USC, §741O. The specific intentofthe revisions is to add references to federal regulations in certain definitions that are duplicative with federal regulationthatthe statehas no authorityto legally change, andto correct an inadvertent omission inthe definition ofreportable quantity. The amendmentwas not developed solelyunderthe general powers ofthe agency, but is authorizedby specific sections ofTexas Health and Safety Code, Chapter 382 (also known as theTexas Clean Air

## Act), andthe Texas WaterCode, which are cited inthe STATUTORYAUTHORITY sectionofthis preamble, including Texas Health and Safety Code, §§382.011, 382.012, and 382.017. Therefore, this rulemaking actionis not subject
to the regulatory analysis provisions ofTexas Government Code, §2001.022S(b).

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule ProjectNo. 2oo8-030-1l6-PR

No comments were received on the RIA.

TakingImpactAssessment 

## Page 13

UnderTexas Government Code, §2007.002(5), taking means a governmental actionthat affects private real property, 

# in whole orin part ortemporarily orpennanently, in a

manner that requires the governmental entityto compensatethe private real property

owner as providedbythe Fifth and FourteenthAmendments to the United States Constitution or §17 or §19, Article I, Texas Constitution; or a governmental actionthat affects an owner's private real propertythatis the subject ofthe governmental action, in whole orinpart ortemporarily orpennanently, in a mannerthat restricts orlimits the owner's rightto the propertythatwould otherwise existinthe absence ofthe governmental action; and is the producing cause ofa reduction ofatleast 25% inthe marketvalue ofthe affectedprivate real property, detenninedby comparing the market value oftheproperty as ifthe governmental action is not in effect andthe marketvalue ofthe property detennined as ifthe governmental action is in effect.

The commission completed a takings impact analysis for the rulemaking action under Texas Government Code, §2007.043. The primarypurpose ofthis rulemaking action, as discussed elsewhere in this preamble, is to add references to federal regulations in certain definitions that are duplicative with federal regulation thatthe statehas no

## Texas Commission on Environmental Quality Chapter 101

- General Air QualityRules Rule ProjectNo. 2008-030-n6-PR Page 14

authorityto legally change, andto correct aninadvertent omissioninthe definition of reportable quantity. The rule will not create any additional burden on private real property. The rulewill not affectprivatereal propertyin a mannerthat would require compensation to privatereal property owners underthe United States Constitution or theTexas Constitution. This rule also will not affect private real propertyin a manner that restricts orlimits an owner's rightto the propertythat would otherwise existinthe absence ofthe governmental action. Therefore, the rulemakingwill not cause ataking underTexas Government Code, Chapter 2007.



# Consistencywith the CoastalManagementProgram The commission determined thatthis rulemaking actionrelates to an action or actions subjectto the Texas Coastal Management Program (CMP) in accordance withthe Coastal CoordinationAct of1991, as amended (Texas Natural Resources Code, §§33.201
et seq.), 

## and commission rules in 30 TAC Chapter 281, SubchapterB, concerning Consistencywiththe Texas Coastal Management Plan. As 

## requiredby §281.4s(a)(3) and 31 TAC §soS.n(b)(2), relating to Actions and Rules Subjectto the CMP, commission rules governing airpollutant emissions mustbe consistentwiththe applicable goals and policies ofthe CMP. The commission reviewed this actionfor consistencywiththe CMP goals andpolicies in accordance withthe rules ofthe Coastal Coordination Council, and determinedthatthe action is consistentwiththe applicable CMP goals and policies.

## Texas CommissiononEnvironmental Quality Chapter 101

- General Air QualityRules Rule ProjectNo. 2008-030-n6-PR Page 15

The CMP goal applicableto this rulemaking action is the goalto protect, preserve, and enhance the diversity, quality, quantity, functions, andvalues ofcoastal natural resource

areas (31 TAC §S01.12(l)). The amendmentreplaces existing definitions withreferences
to federal regulations thatthe statehas no authorityto change and correct an inadvertent omission inthe definition ofreportable quantity. The CMP policy applicable
to this rulemaking actionis thepolicythatcommission rules comply with federal regulations in40 CFR, to protect and enhance air qualityin the coastal areas (31 TAC §S01.32). Therefore, in accordance with 31 TAC §Sos.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies.

Effecton Sites Subjectto the Federal OperatingPermits Program 

## Chapter 101, SubchapterAis an applicable requirement of30 TAC Chapter 122, Federal Operating Permits Program, inthat the definitions in SubchapterAare relevantin defining andunderstanding otherapplicable requirements and applicability generally. Owners or operators subjectto the federal operatingpermitprogram must, consistent withthe revision process in Chapter 122, uponthe effective date ofthe adopted rulemaking, revise theiroperatingpermitto include any new requirements or address applicabilityrelatedto the new Chapter 101 requirements.

Public Comment 

## The commission held a public hearing on September20, 2010, inAustin and no

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule ProjectNo. 2008-ogo-u6-PR Page 16

comments were submitted atthe hearing. The commentperiod closed on September 27, 2010. The commission received written comments from the Texas Industry Project (TIP) andZephyrEnvironmental Corp. (ZEC).



# Response to Comments TIP commentedthatthis rulemaking was unnecessaryto ensure anti-backsliding for any Texas ozone nonattainment area, because it wouldbe supersededby a pending EPA rulemaking, andbecause itwould create an undue hardship for businesses.



# The commission respectfully disagrees with the comments. Dueto EPA's inconsistentpositions on anti-backslidingrequirements andfailure to complete rulemaking to fully implement the D.C. Circuit's opinion in

# South Coastv. EPA, as discussedearlierin this preamble, there has been confusion and concern regardinganti-backsliding requirements, as reflectedin other comments received onthis rulemaking. This rulemaking is necessaryto remove prior adopted rulelanguage that conflictedwith then-applicable EPA guidance regarding applicability ofmajor source thresholds and emission offset requirements. The commissionconstantly strivesfor clarity in its rules, in order for 

# all interestedpersons to both understand and implement commission rules appropriatelyunder state 

# law. As 

# discussed earlier in thispreamble, EPAhas issueda final rule

# Texas Commission on Environmental Quality Chapter 101

- 

# GeneralAir Quality Rules Rule Project No. 2oo8-ogo-n6-PR Page 17



# redesignatingthe BPAarea as attainmentfor the 1997eight-hour ozone standard, and discussingNSRrequirements that apply in the BPAarea as of October 20, 2010, 

# (75 

# FederalRegister64675). Whilethis final rule provides additional guidance regarding EPA's opinions concerning antibacksliding requirements, this rule does nothave general applicability, and therefore, does notresolve theseissues statewide, as assumedbythe cODlDlenter. Regardingthe commenter's concernthatthe rule, if

# adopted, would create an undue hardship forbusiness, the commenterprovidedno information to supporteitherthetype or scope ofhardship. No changes

were madeto the rule in response to these comments.

Zephyrcommentedthat removal ofspecific definitions andreferencing federal regulations would not accomplish the stated goal ofreducing confusion over nonattainment area designations and classifications andtheirrelated applicability thresholds and emission offsetrequirements.



# The cODlDlission appreciates the coDlDlents, and notes thatthe removal of the specific definitions to reference the applicable federal regulationis only

one element ofthe commission's proposed strategyfor clarityregarding anti-backsliding requirements. As 

# statedelsewhere in this 

# preamble, the coDlDlission is adopting rule changes to both Chapters 101 

# and 116 to

## Texas Commission on Environmental Quality Chapter 101

- General Air QualityRules Rule ProjectNo. 2oo8-o30-n6-PR Page 18



# provide clarityregardingthe applicabilitythresholds and emission offset provisions.

Zephyr also commentedthat the currentTCEQWeb site postings were inadequateto prevent confusion over nonattainment area designations and classifications, requested that the TCEQ specify in this response to comments additional items relatedto nonattainmentissues that wouldbeincluded onthe website, and requested specific items, such as "links to all documents establishing air quality permittingrequirements."



# The commission appreciates the comment, andwill 

# considerhowto better provide information on these issues to the public.

## Texas Commission on Environmental Quality Page 1 

## Chapter 116

- Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2008-030-n6-PR

The Texas Commission on Environmental Quality (commission orTCEQ) is adopting the amendments to §n6.12 and §n6.150.

Sections n6.12 and n6.150 are adopted 

# with changes to the proposedtext as published inthe August 27, 2010, issue ofthe 

# TexasRegister (35 TexReg 7676) and willbe republished.

The adopted amendments to §n6.12 and §n6.150 will be submittedto the United States Environmental ProtectionAgency (EPA) as revisions to the state implementation plan (SIP).



# Background and Summary ofthe Factual Basis for theAdopted Rules On July 18, 1997, the EPArevisedthe ozone National AmbientAir Quality Standard (NAAQS), promulgating an ozone standard of0.08 parts per million (ppm) measured

over an eight-hour period (the eight-hour ozone NAAQS or standard) (62 

# Federal Register 38856, July 18, 1997). Different groups and states challengedthe final eighthour ozone NAAQS, andultimately, the United States Supreme Court upheldthe EPA's action setting the NAAQS, but found that the EPA had incorrectlyimplementedthe eight-hour ozone NAAQS by classifying areas only under PartD, Subpart 1 ofthe Federal CleanAir Act (FCAA) Amendments of1990 and remanding other issues to the District ofColumbia (D.C.) Circuit Court ofAppeals 

# (Whitman v. American Trucking

## Texas Commission on Environmental Quality Page 2 Chapter 116

- Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2008-030-116-PR
Assoc., 121 

## S.Ct. 903 (2001)). 

## On March 26, 2002, the D.C. Circuit Court ofAppeals rejectedthe other challenges to the eight-hour ozone NAAQS (American Trucking Assoc. v. EPA, 

## 283 F.3d

## 355 (D.C. 

## Cir. 2002)). 

## The EPAthen proposed and adopted implementation rules to implementthe eight-hour ozone NAAQS, addressing transition issues from the one-hour 

# owne NAAQS, the revocation ofthe one-hour 

# owne NAAQS, classification ofareas for the eight-hour ozone NAAQS, andthe specification of requirements relating to SIPs. EPAfinalized designations for the 1997 eight-hourozone NAAQS effective on June 15, 2004.

FCAA, §107 requires the EPAto designate areas nonattainment, attainment, or unclassifiable no laterthan one year afterthe EPApromulgates a neworrevised NAAQS.Forthe ozone NAAQS, FCAA, §181 further requires that each areadesignated nonattainment shall be classified atthe time ofits designation, by operation oflaw, in accordance with Table 1 ofthat section. FCAA, §181, Table 1prescribes the area class (ranging from marginal to extreme), the design value range (measuredin ppm and in
measurements relating to the one-hour ozone standard), andthe primary standard attainment date (ranging from three years to 20 years after November 15,1990, the effective date ofthe 1990Amendments to the FCAA). Otherspecifics andexceptions are also provided in FCAA, §181. The classification scheme implementedbythe United States Congress providedthat areas with design values closerto attaining the one-hour

ozone standardwouldhave less time to attain the standard, and additional requirements

## Texas Commission on Environmental Quality Page 3 Chapter 116

- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2008-030-116-PR

ofFCAA, Part D, Subpart 2 impose specific, more stringentrequirements on areas as the classifications increase from marginal to moderate (andthe corresponding design values

are further from attainment ofthe one-hour ozone standard).

The EPA rules implementing the 1997 eight-hour ozone standard were adopted in two phases: the Phase I Rule, 69 

## FederalRegister23951, April 30, 2004, addressed a number ofimplementation issues forthe 1997 eight-hour ozone NAAQS, including how

areas shouldbeclassifiedfor the 1997 eight-hour ozone NAAQS (sincethe classification requirements ofFCAA, §181 were basedonthe one-hour ozone standard, the EPA neededto propose andfinalize a classification scheme appropriate forthe eight-hour

ozone standardin accord with FCAA, §181), and which one-hour ozone standard requirements should continueto apply underthe 1997 eight-hour ozone NAAQS; and the Phase II Rule (70 

## FederalRegister71612, November 29,2005), which addressed additional requirements.

In EPA's Phase I Rule, one ofthe issues thatthe EPA consideredwas the continued applicability ofcontrol requirements that appliedin areas previously designated nonattainmentforthe one-hour ozone standard. As 

## part ofthe Phase I Rule, the EPA considered several provisions ofthe FCAAthatit statedwere evidence ofCongress' intentthat certainobligations continue to apply when the EPA revises a NAAQS. The EPA statedthatthe FCCA, §17sA(d) providedthatareas couldnot remove controls that

## Texas Commission on Environmental Quality Page 4 Chapter 116

- Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2008-030-116-PR

were mandatedby the FCAA, Part D, Subpart 2 even afterthe area attainedthe NAAQS andwas redesignatedto attainment. At most, a state couldmove FCAA, Part D, Subpart 2 controls to the contingencyplan provisions ofthe SIP. Anotherprovisionthatthe EPA reviewed and discussedinthe Phase I Rule was FCAA, §172(e), which providesthat if the EPArevises a NAAQS to make itbe less stringent, then the EPA mustpromulgate regulations applicable to areas that have not attainedthe original NAAQS to require controls that are no less stringentthan controls that appliedto areas designated nonattainment prior to such relaxation. The EPA concludedinthe Phase I Rule that "if Congress intended areas to remain subject to the samelevel ofcontrol where a NAAQS

was relaxed, they also intendedthat such controls notbe weakened where the NAAQS is made more stringent" ((see 69 

## FederalRegister23972), April 30, 2004).

Basedonthis premise, the EPA adopted rules that provided for certain requirements to continueto apply to areas thatwere designated nonattainmentfor the one-hour ozone standard, depending on howthey were designatedfor the eight-hour ozone NAAQS. Areas thatwere designated nonattainment for boththe'one-hour ozone and eight-hour

ozone NAAQS were requiredto continue to apply certain requirements that applied underthe one-hour ozone standard, with specific exceptions (40 Code ofFederal Regulations (CFR) §Sl.90s(a)(1)). These requirements included reasonably available control technology (RACT), inspection and maintenance programs (11M), 

## major source applicability cut-offs for purposes ofRACT, rate ofprogress reductions (ROP), stage II

## Texas Commission on Environmental Quality Page S Chapter 116

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vapor recovery, clean fuels fleet programs, clean fuel programs forboilers, transportation control measures, enhanced ambient monitoring requirements, required transportation controls, vehicle miles traveled requirements, and nitrogen oxides requirements (40 CFR §S1.900(t)). The EPA also provided that nonattainment area New Source Review (NSR) requirements requiredby FCAA, §§172(C)(S), 173, and 182based

on the area's previous one-hour ozone NAAQS classification were no longerrequired elements ofan approvable SIP (40 CFR §S1.90s(e)(4)). The EPA also providedthat

areas would no longerhave to meet requirements for conformity, the development of maintenance plans, or the penalty fee obligation for severe areas (40 CFR §S1.90S).

The EPA's Phase I Rule providedthat areas that were nonattainment for the one-hour

ozone NAAQS were not requiredto continue to use the more stringent major source thresholds and emission offset requirements ofthe one-hour ozone standardwhen implementing NSR andTitleVpermitting for the 1997 eight-hour ozone standard.

All areas in Texas designated nonattainmentfor the 1997 eight-hour ozone NAAQS that

were also designated nonattainment for the one-hour ozone NAAQS were classified at a "less stringent" level. Beaumont-PortArthur (BPA) was classified as "serious" for the one-hour ozone NAAQS, but was classified as "moderate" for the 1997 eight-hour ozone NAAQS. Houston-Galveston-Brazoria (HGB) was classified as "severe" for the one-hour

ozone NAAQS and originally classifiedas "moderate" for the 1997 eight-hour ozone

## Texas Commission on Environmental Quality Page 6 Chapter 116

- Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2008-030-116-PR
NAAQS. The EPAhas since reclassifiedthe HGB area to "severe" for the 1997 eight-hour

ozone NAAQS, pursuantto avoluntaryreclassification requestby the Governorof Texas. The Dallas-FortWorth (DFW) areawas classifiedas "serious" for the one-hour

ozone NAAQS, and was classified as "moderate" for the 1997 eight-hour ozone NAAQS. The El Paso areawas nonattainmentfor the one-hour ozone NAAQS, classified as "serious," but designated attainmentfor the 1997 eight-hourozone NAAQS.

So, for example, a regulated entity in the HGB areatriggered nonattainmentreviewif the potential to emit was equal to or greater than 25 tons peryear (tpy) underthe "severe" classification for the one-hourozone NAAQS, but only triggered nonattainment reviewunderthe "moderate" classificationfor the eight-hour ozone NAAQS ifthe potential to emit was equal to or greater than 100 tpy. Underthe existingrules, sincethe HGB area has beenreclassified to "severe" forthe 1997 eight-hour ozone NAAQS, regulated entities must again utilizethe same major sourcethreshold and emission offsetrequirements that previouslyappliedunderthe one-hour ozone standard.

After designations for the 1997 eight-hour ozone standardand the final Phase I Rule

were effective, the commission proceededwith rulemaking to implementthe requirements for the 1997 eight-hour ozone standard. The commissionupdated Chapter 116 to implementthe changes from the Phase I Rule regarding the application ofthe 1997 eight-hour ozone standardfor nonattainment NSR On May 25, 2005, the

## Texas Commission on Environmental Quality Page 7 Chapter 116

- Control ofAir Pollution by Permits for New Construction or Modification Rule Project No. 2oo8-ogo-116-PR

commission adopted changes to Chapter 116, effectiveJune 16, 2005, to provide thatfor the HGB, DFW, and BPA eight-hour ozone nonattainment areas, ifthe EPA promulgatedrules requiring NSRpermit applications in those areas to be evaluatedfor nonattainment NSR according to that area's one-hour ozone classification, then each application wouldbe evaluatedin accordance with the area's one-hour ozone classification. "Evaluation" was specified as including boththe thresholdfor determining ifthere was a modification as well as the ratio ofoffsets required, along with any other applicable requirement that dependedupon an area's nonattainment classification. In adopting this rule, the commission notedthat although the Phase I Rule providedfor the application ofthe eight-hour ozone standardfor nonattainment NSR, the EPAhad granted a partial reconsideration ofthe Phase I Rule specifically regarding that issue, andthe result ofthe reconsideration couldbe areturn to the onehour ozone standardfor application ofnonattainment NSR. Because ofthis concern, the commission adopted contingencylanguage in §116.150, andin the tablefootnotes in the figure located inthe definition ofmajor modification in §116.12. This contingency language was adoptedto be effective in the event that the EPAcompletedrulemaking to require states to return to a one-hour ozone standardtriggerfor federal nonattainment NSRevaluations. In this rulemaking, the commission is removing this previously adopted contingencylanguage.

The EPA Phase I Rule, and particularlythe EPA's determination that areas designated as

## Texas Commission on Environmental Quality Page 8 Chapter 116

- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2008-030-116-PR

nonattainment underthe one-hour ozone standardwould no longerbe subjectto onehour nonattainment NSRrequirements, was successfullychallengedin

# South CoastAir QualityManagementDistrictv. EnvironmentalProtectionAgency, 472 F.3d 882 (D.C. Cir. 

## 2006) andthe rule was partially vacated and remandedto the EPA, as made clearin its revised opinion onJune 8,2007 

# (South CoastAir QualityManagementDistrictv. EnvironmentalProtectionAgency, 489 

# F.3d 1245 

# (D.C. Cir. 2007)). 

## The

# South Coast decision was upheldbythe United States Supreme Court onJanuary 14, 2008.

In a guidance memo issuedon October 3, 2007, the EPAstatedthat it interpretedthe 

# South Coast ruling as restoring NSR applicability thresholds andemission offset requirements pursuantto classifications underthe one-hour ozone standard. The EPA also notedinthis guidance memo that it intendedto conductrulemaking to conformthe NSRregulations to the 

# South Coast decision. EPA statedthat it intended to issue an immediately-effectivefinal rule underthe authority ofthe "Good Cause" provision ofthe FederalAdministrative ProcedureActto restore the NSR applicabilitythresholds and emission offsets associatedwith designatedone-hour ozonenonattainment areas, and wouldbegin a separate notice and commentrulemaking to address longer-term applicability ofone-hour ozone NSRrequirements, in particular, the conditions and mechanisms underwhich those one-hour ozone NSR requirements would ceaseto apply for NSRpurposes. Lastly, the EPA strongly encouraged states to comply withthe 

# South Coast decision as quickly as possible.

## Texas Commission on Environmental Quality Page 9 Chapter 116

- Control ofAir Pollution by Permits for New Construction or Modification Rule Project No. 2008-030-116-PR

Because the one-hour ozone standardhas been revoked, the EPAis no longer making redesignations orreclassifications underthis standard. However, the EPAis making determinations under its Clean Data Policythatareas are currently attaining the onehour ozone NAAQS. In its proposal to determine thatthe Southern New Jersey portion ofthe PhiladelphiaMetro nonattainmentarea attainedthe one-hour ozone NAAQS (see 

# 73 FederalRegister42727, July 23, 2008), the EPA discussedthe effect ofthe D.C. Circuit Court ofAppeals' decision vacating a portion ofthe 1997 eight-hour ozone Phase I Implementation Rule 

# (South CoastAirQualityManagementDistrictv. EPA, 472 F3d 882 (2006) and489 F3d 1295 (2007)). The EPA stated: "Withrespect to the challenges
tothe anti-backsliding provisions ofthe rule, the Courtvacatedthree provisions that wouldhave allowed States to remove from the SIP orto not adoptthree one-hour obligations once the one-hour ozone NAAQS was revoked (including one-hour nonattainment NSRrequirements). {T}hethree provisions notedpreviously

... were vacatedbythe Court. As 

## a result, States must continueto meetthe obligations for onehour NSR

.... Currently, EPA is developing two proposed rules to address the Court's
vacatur and remand with respect to these three requirements. EPA will address inthis proposedrule how the one-hour obligations that currently continueto applyunder EPA's anti-backsliding rule (as interpretedby the Court) apply where the EPA has made

a determination thatthe area attainedthe one-hour ozone NAAQS byits attainment date." One possible outcome from the EPA rulemaking on this issue may be to direct

## Texas Commission on Environmental Quality Page 10 

## Chapter 116

- Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2008-030-116-PR

states thatwantto remove one-hour ozone nonattainment NSRrequirements to submit SIP revisions demonstrating that removing one-hour ozone nonattainmentNSR requirements will not interfere with attainmentor maintenance ofthe ozone NAAQS.

Because the EPAhas not completed any rulemaking to implementthe 

## South Coast decision regarding NSR anti-backsliding, states must decide howto implement, and give effectto, the court's decision. Any revision to a SIPthat could interfere with or does not comply withthe FCAA andthe SIPbecause ithas the effectofmaking the approved SIP less stringent maybe'considered as "backsliding" from those requirements and would
notbe approvable bythe EPA. Giventhe uncertainty ofthe future EPA rulemaking, and the finality ofthe 

## South Coastdecision as ofJanuary 14, 2008, the commissionis removing the previously adopted contingencylanguage, in additionto other changes, to clarifythe requirements for nonattainment NSR Without effective andunderstandable guidance from the EPA, through rulemaking or otherwise, the commissionis leftto determine the most reasonable course ofaction. The 

## South Coastdecision, upheldby the United States Supreme Court, makes clearthatareas may not ignore one-hour ozone nonattainment NSRrequirements.

The commission hadpreviously adopted rules specifying that sources in the BPA, 

## HGB, andDFW nonattainment areas should apply eight-hour ozone nonattainment NSR requirements. The commission is now deleting certain portions ofthe definition in

## Texas Commission on Environmental Quality Page 11 Chapter 116

- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2oo8-030-116-PR
§116.12(18)(A), concerning major modification andthe requirements of§116.150(d). This rulemaking makes clearthat permittedfacilities in areas thatwere designated nonattainment for the one-hour ozone standard are subjectto the major source thresholds and emission offsets ofthe one-hour ozone standardupon the effective date ofthis rulemaking unless one ofthe four exceptions identifiedin §116.150(a) apply.

Staffhas previouslypresentedthese rule amendments (Rule Project 2008-030-116-PR)
to the commission for consideration. Atthe February 25, 2009 , commissioner's agenda, the commission remandedthe rule projectto the executivedirector's staffin anticipation ofadditional direction or actionby the EPA, because EPA continuedto indicate invarious federal notices its intentto complete rulemaking regarding NSR antibacksliding requirements in response to the South Coastdecision. EPA's proposed rule
to implementthe 1997 eight-hour ozone NAAQS revision on subpart 1reclassification and anti-backsliding provisions underthe former one-hour ozone standardwas published inthe January 16, 2009, FederalRegister, buthas notyetbeen finalized. This rulemaking removes language regarding the exemptions from nonattainment new

source review (NNSR) thatwere vacatedby South Coast.

On September 23, 2009, the EPApublishednotice ofthe proposed disapproval ofpast revisions to theTexas NNSR SIP (74 FederalRegister 48467, September 23,2009) that

are relatedto these amendments, andfinalizedthis disapproval on September 15, 2010

## Texas Commission on Environmental Quality Page 12 Chapter 116

- Control ofAir Pollution by Permits for New Construction or Modification Rule Project No. 2oo8-ogo-116-PR
(74 FederalRegister56424). EPA disapprovedthe changes the commission made to several sections ofChapter 116. Two ofthese changes were the changes thatthe commission adoptedto §116.12 and §1l6.150 to implementthe Phase I rule implementing the 1997 eight-hour ozone standard, discussed earlier inthis preamble, which the commission proposedto change as part ofthis action. As 

## discussedfurther in the Sectionby Section Discussion section ofthis preamble, the commissionis adopting changes to these sectionsto remove the disapprovedlanguage andto assure that NNSR permitting requirements are clear.

Additionally, on October 20, 2010, EPApublished afinal rule to approvethe redesignation ofthe BPA 1997 eight-hour ozone nonattainment areato attainment, and clarify EPA's previous approval ofthe EI Paso Section 1l0(a)(1) maintenance plan for the 1997 eight-hour ozone standard (75 FederalRegister 64675, October 20, 2010). This final rule notedEPA's new position regarding NSR anti-backsliding and whether onehour ozone major sourcethresholds andemission offsetrequirements continue to'apply in an area. EPAnoted "afterfinal redesignation to attainmentforthe 1997 eight-hour

ozone standard, EPA does not require the continued application ofone-hour antibacksliding nonattainment NSR, ifTexas interprets its SIP as applying PSD to BPA in these circumstances (see 75 FederalRegister 64675 and 64677, October 20, 2010). The EPA also clarifiedthat, with respectto El Paso, "EPAhas hadfurther opportunityto considerthe applicable statutory and regulatory provisions andthe decision in

## South

## Texas Commission on Environmental Quality Page 13 Chapter 116

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## Coast

.... As 

## a result, we no longerbelieve thatthe CleanAirAct requires a separate Section 1100) analysis to replace one-hour nonattainment NSRwith prevention of significant deterioration (PSD) once an area has been redesignatedto attainmentfor the 1997 eight-hour ozone standard, orhas an approved Section 11o(a)(l) maintenance plan for that standard. In sum, we believethat the approachto the nonattainment NSR/PSD transition that we are adopting here with respectto BPA should also be extendedto EI Paso. Thus, as long as the Texas NSR SIP is clearthatthe PSD SIP requirements apply to

an area such as EI Paso, then that is all that is requiredby EPA" (see 75 

## FederalRegister 64675 and 64677, October 20,2010). The commission appreciates this clear statement from EPA, and agrees thatthe SIP should be clear onthis issue. Therefore, as discussed in this preamble, althoughthe Texas SIP has always applied PSD in an areaupon redesignation, the commission is concurrently adopting changes to Chapter 116 to make clearthat PSD applies once an area has been redesignatedto attainment for a particular criteriapollutant.

The amendments confirm thatthe BPA area is no longer subjectto NNSR As 

## discussed previously inthis preamble, on October 20,2010, EPApublishedthe redesignation of the BPA areato attainmentfor the 1997 eight-hour ozone NAAQS, and a determination thatthe BPA areahad attainedthe one-hour ozone NAAQS. In this action, EPA determinedthatthe BPA area neednotbe subjectto NNSR as an anti-backsliding requirement. Thus, underthe amendment to §116.150(a)(1), the BPA areais not subject

## Texas Commission on Environmental Quality Page 14 Chapter n6

- Control ofAir 

## Pollution by 

## Permits for New Construction or Modification Rille Project No. 2oo8-o30-n6-PR

to NNSRfor eitherthe one-hour ozone or 1997 eight-hour ozone NAAQS. Additionally, the amendments confirmthatthe EI Paso areais no longer subjectto NNSR. On January 15, 2009, EPApublished its approval ofa maintenance plan forthe EI Paso area forthe 1997 eight-hour ozone standard. As 

## discussedpreviouslyin this preamble, in EPA's October 20,2010, action for the BPAarea, EPA statedthat "we no longerbelieve thatthe CleanAirActrequires a separate noO) analysis to replace I-hour nonattainmentNSRwith PSD once an areahas

... an approved no(a)(l) maintenance planfor that standard" (see 75 FederalRegister 

## 64677). Takentogether, these
statements reflect an EPA determination that NNSRis no longerrequiredfor purposes ofanti-backsliding forthe EI Paso area. Thus, underthe amendmentto §n6.150(a)(4), the E1 Paso area is not subjectto NNSRfor eitherthe one-hour ozone or 1997 eight-hour

ozone NAAQS.

This is an issue ofextreme importanceto the commission, the regulated community and the public, andthere shoilldbe no roomfor ambiguity or argument. In an effortto

ensurethatTCEQ regu1atory requirements regarding the NNSRpermitting program are clear, meetthe requirements ofthe FCAA, and are approvable into the SIP, the commission is adopting the following amendments to eliminate any deficiencies that wouldpreventapproval ofthe rille changes.

Additionally, in 

## orderto preventfuture confusion over designations and classifications

## Texas Commission on Environmental Quality Page 15 Chapter 116

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andtheirrelated applicabilitythresholds and emissions offset requirements, the commission is adopting concurrent amendments to the definitions ofmaintenance area, and nonattainment area in 30 TAC Chapter 101, General Air Quality Rules.



# Section

# by Section Discussion §116.12, 

# Nonattainment andPrevention o/SignificantDeterioration Definitions The commission is changing footnote 1in Table I, paragraph (18)(A) to remove the reference to the CFR and replace it with a reference the definition of"Nonattainment area" in 30TAC §101.1. This reference is no longer necessarybecause the definition of nonattainmentis being updated and also references the appropriate part ofthe CFR. The commission is also changingthe term "majormodificationlevel" to "significant level" in footnote 2 in Table 1in §116.12(18)(A). This will ensure thatthe term used in the footnote matches the heading in the third column ofthe table andhelp eliminate any confusion resulting from the use ofdifferent terms. The commission is also removing footnotes 6 and 7from Table 1in §n6.12(18)(A).

The commission is making a change from the proposalto remove the second sentence of footnote 3 ofTable I in §116.12(18) regarding the El Paso ozone nonattainment area. As 

## the result ofthe EPA's final notice regarding the Beaumont/PortArthur ozone nonattainmentarea redisignation (see 75 

# FederalRegister64675, October 20,2010), which clarifiedthe EPA's approval ofthe E1 Paso area's eight-hourozone nonattainment

## Texas Commission on Environmental Quality Page 16 Chapter n6

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maintenance plan, the requirementfor EI Paso infootnote 3 is no longer necessary.

Footnote 6 indicates that the EPAmust complete rulemaking before NSR applications

are evaluated according to their one-hour classification. However, the EPAhas stated that: the 

## South Coastdecision is self-implementing; did not require rulemaking by the EPAto be effective; and NSR applications shouldbe evaluatedbased upon one-hour classifications, ifthey are more stringentthan an area's eight-hour classification, and has specifically disapprovedfootnote 6 (see 75 Federal Register56424, September 15, 2010). Footnote 7 states that permit applications in areas designated as nonattainment for ozone underFCAA, Title I, Part D, Subpart 1 (42 United States Code (USC), §7502) willbe evaluatedas ifthat area was designated as Marginal. However, Texas does not have any areas currently designated as nonattainment for ozone underFCAA, Title I, Part D, Subpart 1. The San Antonio area was originally designated nonattainmentdeferredfor the 1997 eight-hour ozone NAAQS, buthas sincebeen designated attainment.



## §116.150, NewMajor Source or

## MajorModification in 

## OzoneNonattainmentAreas The commission is amending §n6.150(a) by removing §n6.150(a)(I) and (2). Subsection (a) wouldthenbe amendedto apply the requirements ofthis subsection as of the date ofissuance ofthe permit andto add a requirement for continuedapplicability ofNNSRuntil the EPA has made a finding of attainment; the EPAhas approvedthe

## Texas Commission on Environmental Quality Page 17 Chapter n6

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removal ofnonattainment NSRrequirements from the area; the EPAhas determined that PSD requirements apply in the area; orthat nonattainment NSRis no longer required for the purposes ofantibacksliding.

The commission is also removing §n6.150(d) from therule. Subsection (d) contains language similarto that in footnote 6 to Table 1in §n6.12(18)(A). This language indicates thatthe EPAmust complete rulemaking before NSR applications are evaluated according to their one-hour classification. However, the EPAhas stated that: the 

## South Coastdecision is self-implementing; did notrequire rulemaking bythe EPAto be

. effective; and NSRapplications shouldbe evaluatedbased upon one-hour

classifications, ifthey are more stringentthan an area's eight-hour classification, and has specifically disapproved §n6.150(d) and similarlanguage in footnote 6 (see 75 

## FederalRegister56424, September 15, 2010). Additionally, the netting requirement and exceptions in §n6.150(d) are redundantto the same requirement and exceptions in §n6.150(c) andthus, unnecessary. The commission is also renumbering the remainder of§n6.150 to reflectthe removal of§n6.150(d) andminor changes to references in §n6.150(b) to reflectthe renumbering. The commission is changing §n6.150(e) to reflect changes in a concurrentrulemaking in Chapter 101.

As 

## the result ofcomments received onthe proposal ofthese amendments the commission is 

## changing: §n6.150(a)(I)

- (4) to make clearthat the conditions on which

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these exceptions arebased must exist onthe date ofissuance ofthe permit; §116.150(d)(3)(A) to make clearthatthis exception only applies in a serious or severe

ozone nonattainmentarea; and §116.150(d)(3)(B) to make clearthatthis exception only applies in a serious or severe ozone nonattainment area and to specifically statethatthe best available control technology (BACT) equivalentrequiredby the rule is federal BACT

as identified in §116.16o(c)(1)(A).

Final Regulatory ImpactAnalysis Determination 

## The commission reviewedthe adoptedrulemaking in light ofthe regulatory impact analysis requirements ofTexas Government Code, §2001.0225, and determinedthatthe rulemaking does not meetthe definition ofa major environmental rule as definedinthat statute, and in addition, ifit did meetthe definition, would notbe subjectto the requirementto prepare a regulatory impact analysis.

Amajorenvironmental rule means a rule, the specific intent ofwhichis to protectthe environment orreduce risks to humanhealthfrom environmental exposure, andthat may adversely affectin a material waythe economy, a sector ofthe economy, productivity, competition,jobs, the environment, or the public health andsafety ofthe
state or a sector ofthe state. The specificintent ofthe revisions is to remove certain definitions that are duplicative, andto remove previously adoptedcontingencylanguage thatwould require EPAfinal rulemaking before NSR applications are evaluated

## Texas Commission on Environmental Quality Page 19 Chapter 116

- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2oo8-030-116-PR according to the one-hourclassification ofthe area where the facility is located. These changes will notadversely affectthe economy, a sector ofthe economy, productivity, competition,jobs, the environment, orthe public health and safety ofthe state or a sector ofthe state in a material way sincethey codifythe effect a federal district court ruling thathas been upheldbythe United States Supreme Courtin South Coast, as discussed elsewhere inthis preamble.

Additionally, even ifthe rules metthe definition ofa major environmental rule, the rulemaking does not meetany ofthe four applicability criteriafor requiring a regulatory impact analysis for a major environmental rule, which are listedinTexas Government Code, §2001.022s(a). Texas Government Code, §2001.022S, applies onlyto a major environmental rule, the result ofwhich is 

## to: 1) 

## exceed a standard setbyfederal law, unless the rule is specifically requiredby state law; 2) exceed an express requirementof
state law, unless the rule is specifically requiredbyfederal law; 3) exceed a requirement ofa delegation agreement or contractbetweenthe state and an agency orrepresentative ofthe federal governmentto implement a state andfederal program; or4) adopta rule solelyunderthe general powers ofthe agency instead ofundera specific state law.

The adopted rules wouldimplement requirements ofthe FCAA. Under42 USC, §741O, each state is requiredto adopt andimplement a SIP containing adequateprovisions to implement, attain, maintain, and enforce the NAAQS withinthe state. While 42 USC,

## Texas Commission on Environmental Quality Page 20 Chapter 116

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§741O generally does Rot require specific programs, methods, or emission reductions in orderto meet the standard, state SIPs must include specificrequirements as specifiedby 42 USC, §741O. The provisions ofthe FCAArecognize that states are in the bestposition
to determine what programs and controls are necessary or appropriate in orderto meet the NAAQS. This flexibility allows states, affected industry, andthe public to collaborate

onthebest methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a statefrom developing a programthat meets the requirements of42 USC, §741O. States are notfree to ignorethe requirements of42 USC, §741O, and must develop programs to assure thattheir SIPs provide for implementation, attainment, maintenance, and enforcement ofthe NAAQS withinthe state. One ofthe requirements of42 USC, §741O is for states to include programs for the regulation ofthe modification andconstruction ofany stationary source within the areacoveredbythe plan as necessary to assure thatthe NAAQS are achieved, including a permitprogram as required in FCAA, Parts Cand D, or NSR. Additionally, once states have developed SIPs, andthose plans are approvedbythe EPA, the FCAAprescribes, in 42 USC, §7502(e) that the EPA, in modifying a NAAQS, shall promulgate rules thatapply to all areas that have
not attainedthe previous NAAQS that provide for controls that are no less stringent than the controls that previously appliedto the area. The district courtin South Coast 

## found that NSRwas a "control," and vacated the EPA's Phase I rules that provided that the major source thresholds and offset requirements that applied as a result ofan area's

## Texas Commission on Environmental Quality Page 21 Chapter 116

- Control ofAirPollution 

# by Permits for New Construction or Modification Rule Project No. 2oo8-030-116-PR designation and classificationunderthe one-hour ozone standardwere no longer necessary. Until the EPAcompletes rulemaking to further interpretthe applicability of the NSRpermitting program inthe context of42 USC, §7502(e) and revisions to the

ozone NAAQS, state rules that allowNSRreviewto rely upon designations and classifications for the eight-hour ozone standard in areas previously designated nonattainment forthe one-hour ozone standard conflictwith the 

## South Coastruling.

The requirementto provide a fiscal analysis ofregulations in the Texas Government Code was amendedby Senate Bill (SB) 633 during the 75th Legislature, 1997. Theintent ofSB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identifiedin the statutorylanguage as major environmental rules that will have a material adverse impact and will exceed a requirement ofstate law, federal law, or a delegatedfederal program, orare adopted solelyunder the general powers ofthe agency. Withthe understanding thatthis requirementwould seldom apply, the commission provided a cost estimate for SB 633 thatconcluded ''based on an assessment ofrules adoptedby the agency in the past, itis
not anticipatedthatthe bill will have significantfiscal implications for the agency due to its limitedapplication." The commission also notedthatthe number ofrules that would require assessment underthe provisions ofthe bill was not large. This conclusion was based, in part, on the criteria setforth inthe bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeded a federal law.

## Texas Commission on Environmental Quality Page 22 Chapter 116

- Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2oo8-030-116-PR

Because ofthe ongoing need to meet federal requirements, the commission routinely proposes and adopts rules incorporating or designedto satisfy specific federal requirements. Thelegislature is presumedto understand this federal scheme. If

## each rule proposedby the commission to meet a federal requirementwas consideredto be a major environmental rule that exceeds federal law, then each ofthose rules would require the full regulatory impact analysis (RIA) contemplatedby SB 633. This conclusion is inconsistentwith the conclusions reachedby the commission in its cost estimate andby the Legislative Budget Board (LBB) in its fiscal notes. Sincethe legislature is presumedto understandthe fiscal impacts ofthebills it

## passes, andthat

. presumption is based on information providedby state agencies andthe LBB, the commission believes that the intent ofSB 633 was onlyto require the full RIA for rules that are extraordinaryin nature. While the adopted rules may have abroadimpact, that impactis no greater than is necessary or appropriate to meetthe requirements ofthe FCAA, andin fact creates no additional impacts sincethe rules do not exceedthe requirement to attain and maintain the NAAQS. Forthese reasons, the adoptedrules fall underthe exception inTexas Government Code, §20010022s(a), because they are requiredby, and do not exceed, federal law, including the SIP. In addition, these rules do not exceed any contractbetween the state and a federal agency.

The commissionhas consistently appliedthis construction to its rules sincethis statute

## Texas Commission on Environmental Quality Page 23 Chapter 116

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was enactedin 1997. Sincethattime, the legislature has revisedthe Texas Government Code, butleftthis provision substantially unamended. It 

## is presumedthat "when an agency interpretation is in effect atthe time the legislature amends the laws without making substantial change inthe statute, the legislature is deemedto have acceptedthe agency's interpretation" 

# (CentralPower & 

# LightCo. v. Sharp, 919 S.W.2d485,489 (Tex. App. Austin 1995), 

# writdeniedwithpercuriam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); 

# Bullockv. Marathon Oil Co., 798 S.W.2d353, 357 (Tex. App. Austin 1990, 

# no writ). CfHumble Oil & 

# Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); 

# Dudney v. State FarmMut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); 

# Southwestern LifeIns. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000,

# pet. denied); and 

# CoastalIndust. WaterAuth. v. Trinity Portland Cement Div., 563 S.w.2d 916 (Tex. 1978)).

The commission's interpretation ofthe RIA requirements is also supported by a change made to theAdministrative ProcedureAct (APA) by the legislature in 1999. In an attemptto limitthe numberofrule challenges basedupon APArequirements, the legislature clarified that state agencies are requiredto meetthese sections ofthe APA againstthe standard of"substantial compliance" (see Texas Government Code, §2001.035). The legislature specificallyidentifiedTexas Government Code, §2001.0225

as falling underthis standard. As 

## discussedin this analysis and elsewhere in this preamble, the commission 

# has substantially complied with the requirements ofTexas

## Texas Commission on Environmental Quality Page 24 Chapter 116

- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2008-030-116-PR

Government Code, §2001.022S.

The adopted rules implementrequirements ofthe FCAA, specificallyto adopt and implement SIPs to attain and maintain the NAAQS, including a requirementto adopt andimplementpermitprograms. The specific intent ofthe adopted rulerevisions is to

remove certain definitions that are duplicative, and previously adoptedcontingency languagethatwould require EPAfinal rulemaking beforeNSR applications are evaluatedaccording to the one-hour classification ofthe areawhere the facility is located, in order to avoid conflictwiththe South Coast decision. These amendments

were not developed solelyunder the generalpowers ofthe agency, but are authorized by specific sections ofTexas Health and Safety Code, Chapter 382 (also known as the Texas CleanAirAct), and the Texas Water Code, which are citedinthe StatutoryAuthority section ofthese rules, including Texas Health and Safety Code, §§382.011, 382.012, and 382.017. Therefore, this rulemaking action is not subjectto the regulatory analysis provisions ofTexas Government Code, §2001.022S(b).

Takings ImpactAssessment 

## UnderTexas Government Code, §2007.002(S), taking means a governmental action that affects private real property, in whole orinpart ortemporarily orpermanently, in a

mannerthat requires the governmental entity to compensatethe privatereal property

owneras providedbythe Fifth and FourteenthAmendments to the United States

## Texas Commission on Environmental Quality Page 25 Chapter 116

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Constitution or §17 or §19, Article I, Texas Constitution; or a governmental actionthat affects an owner's private real propertythat is the subject ofthe governmental action, in whole orin part ortemporarily orpermanently, in a mannerthat restricts orlimits the owner's right to the propertythat would otherwise existin the absence ofthe governmental action; andis the producing cause ofa reduction ofatleast 25% in the marketvalue ofthe affectedprivate real property, determinedby comparing the market value ofthe property as ifthe governmental action is not in effect andthe market value ofthe property determined as ifthe governmental action is in effect.

The commission completed a takings impact analysis for the adopted rulemaking action underthe Texas Government Code, §2007.043. The primary purpose ofthis rulemaking action, as discussed elsewhere in this preamble, is to remove certain definitions that are duplicative, and previously adopted contingencylanguagethatwould require EPAfinal rulemaking before NSR applications are evaluated according to the one-hour classification ofthe area where the facility is located.

The adopted rules will not create any additional burden on private real property. The rules will not affectprivate real propertyin a mannerthat would require compensation
to private real property owners underthe United States Constitution or the Texas Constitution. This rulemaking also will not affect private real propertyin a mannerthat restricts orlimits an owner's right to the propertythatwould otherwise existinthe

## Texas Commission on Environmental Quality Page 26 Chapter 116

- Control ofAir Pollutionby Permits for New Construction or Modification Rule Project No. 2008-030-116-PR

absence ofthe governmental action. Therefore, the rulemaking will not cause ataking underTexas Government Code, Chapter2007.

Consistencywith the Coastal Management Program The commission determinedthat this rulemaking action relates to an action or actions subjectto the Texas Coastal Management Program (CMP) in accordance withthe Coastal CoordinationAct of1991, as amended (Texas Natural Resources Code, §§33.201
et seq.), 

## and commission rules in 30 TAC Chapter 281, SubchapterB, concerning Consistencywith the Texas Coastal Management Program. As 

## requiredby §281.4s(a)(3) and 31 TAC §SOS.11(b)(2), relating toActions and Rules Subjectto the CMP, commission rules governing air pollutant emissions mustbe consistentwith the applicable goals andpolicies ofthe CMP. The commission reviewedthis actionfor consistencywiththe CMP goals andpolicies in accordance withthe rules ofthe Coastal CoordinationCouncil, and determinedthatthe action is consistentwiththe applicable CMPgoals andpolicies.

The CMP goal applicableto this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, andvalues ofcoastal natural resource

areas (31 TAC §S01.120)). These amendments will indirectlybenefitthe environment because reducedemissions resulting from the more stringent major source thresholds andemission offsetrequirements ofthe one-hour ozone standardensurethat there will

## Texas Commission on Environmental Quality Page 27 Chapter 116

- Control ofAir Pollutionby Permits for New

## Construction orModification Rule Project No. 2008-030-116-PR

be fewer adverse impacts to public health andthe environment. The CMP policy applicable to this rulemaking action is the policythat commission rules comply with federal regulations in40 CFRto protect andenhance air qualityinthe coastal areas (31 TAC §SOl.14(q)). Therefore, in accordance with 31 TAC §Sos.22(e), the commission affirms thatthis rulemaking action is consistentwith CMP goals andpolicies.

Effect on Sites Subject to the Federal Operating Permits Program 

## Chapter 116 is an applicable requirement of30 TAC Chapter 122, Federal Operating Permits Program. Owners and operators subjectto the federal operatingpermit program must, consistent with the revision process in Chapter 122, upon the effective date ofthe adopted rulemaking, revise their operating permitto includethe new Chapter 116 requirements. Additionally, sources subjectto the adoptedrules may become subjectto the federal operating permitprogram.

Public Comment 

## The commission held a publichearing on September 20, 2010. The commentperiod closedon September 27, 2010. The commission received comments from The United States Environmental ProtectionAgency (EPA), the Texas Industry Project (TIP), and Zephyr Environmental Corp. (ZEC).

RESPONSETO COMMENTS

## Texas Commission on Environmental Quality Page 28 Chapter u6

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The EPA commented that most ofTCEQ's proposed changes meet federal requirements. The EPA also stated thatTCEQ makes it clear that NNSR applies based on the attainment status ofthe areawhere the source is located onthe date ofpermitissuance ratherthan the date ofsubmittal ofa complete permit application.



# The commission appreciates the EPA's support.

The EPA commentedthatthe exceptions to the requirementfor NNSRbased on nonattainment status on the date ofissuance ofthe permitin §U6.150(a)(1-4) must also existonthe date ofissuance ofthe permitin orderto apply.



# The commission agrees with this comment and is makingchanges to §116.150(a)(1) - (4) to make clearthatthe conditions on which these exceptions are based must exist onthe date ofissuance 

# ofthe permit.

The EPA also commentedthat the exception in §U6.150(d)(3)(A) that allows major stationary sources with a potential to emitless than 100tpy to forego NNSRifthe projectincreases are offsetby a ratio of1.3 to 1 only applies in serious or severe ozone nonattainment areas.



# The commission agrees with this comment and is changing

## Texas Commission on Environmental Quality Page 29 Chapter 116

- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2oo8-030-u6-PR §116.150(d)(g)(A) to make clearthat this exception only applies in a serious

or severe ozone nonattainment area.

The EPAcommentedthatthe exception in §116.150(d)(3)(B) that allows major· stationary sources with a potential to emit greaterthan 100 tpy to substitute BACT for lowest achievable emissions rate is limitedto serious and severe ozone nonattainment

area and must specifythe federal definition ofBACT rather than the state BACT for minor sources.

The commission agrees with this comment and is changing §116.150(d)(g)(B) to make clear that this exception only applies in a serious

or severe ozone nonattainment area. Additionally, the commission is changing §116.150(d)(g)(B) to specifically statethat the BACfequivalent required bythe rule is federal BACfas identified in §116.16o(c)(l)(A).

TIP commentedthatthis rulemaking was unnecessary: to ensure anti-backsliding for any Texas ozone nonattainment area; becauseit wouldbe supersededby a pending EPA rulemaking; andbecause it would create an undue hardship for business.

The commission respectfully disagrees with the comments. Due to EPA's inconsistentpositions on anti-backsliding requirements andfailure to

## Texas Commission on Environmental Quality Page 30 Chapter 116

- Control ofAir Pollution by 

## Permits for New Construction or Modification Rule Project No. 2008-030-116-PR 

## complete rulemaking to fully implementthe D.C. Circuit's opinion in South Coastv. EPA, 

## as discussed earlierin this preamble, there has been confusion and concern regarding anti-backsliding requirements, as reflectedin other comments received onthis rulemaking. Therulemaking

was necessary to remove prior adoptedrule language that conflictedwith then-applicable EPAguidance regarding applicability ofmajor source thresholds and emission offsetrequirements. The commission constantly strives for clarityin its rules, in orderfor all interestedpersons to both understand and implement commission rules appropriately under state law. As 

## discussed earlier in this preamble, EPAhas issued a final rule redesignating the BPA area as attainmentfor the 1997 eight-hour ozone standard, and discussing NSRrequirements that apply in the BPA area as of October 20,2010, (75 

# FederalRegister 64675). While this final rule provides additional guidance regarding EPA's opinions concerning antibacksliding requirements, this rule does nothave general applicability, and therefore, does not resolve these issues statewide, as assumedby the
commenter. Additionally, as discussed elsewhere inthis preamble, EPA specifically disapprovedthe rule language currently in effectregarding antibacksliding in §116.1O(18) and §116.150(d). Regarding the commenters

concern thatthe rule, if

## adopted, would create an undue hardship for business, the commenterprovidedno information to support eitherthe

## Texas Commission on Environmental Quality Page 31 Chapter 116

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# type or scope 

# ofhardship. No changes were made to the rules as a result of these comments.

Zephyr commented that it supportedthe changes to §116.150(a)(1)

- (4) andTCEQ's efforts to obtain a one-hourozone attainment designation from the EPAfor El Paso County.



# The commission appreciates Zephyr's support.

# STAFF RECOMMENDATIONS

## Texas Commission on Environmental Quality Chapter 101

- GeneralAir Quality Rules Rule ProjectNo. 2008-030-116-PR

SUBCHAPTERA: GENERAL RULES §101.1



## StatutoryAuthority 

## The amendment

## is adopted underTexas Water Code, §S.102, concerning General Powers; §S.103, concerning Rules; and §S.lOS concerning General Policy, which Page 19

authorize the commission to adopt rules as necessaryto carry outits power and duties underthe Texas WaterCode and underTexas Health and Safety Code, §382.017, which provides the commissionwith the authorityto adopt rules consistentwith thepolicy and
purposes ofthe Texas CleanAirAct, §382.011, concerning General Powers andDuties, which authorizes the commission to control the quality ofthe state's air; and §382.012, concerning StateAir Control Plan, which authorizes the commission to prepare and develop a comprehensiveplanfor the proper control ofthe state's air.

The adopted amendment implements Texas Water Code, §S.103; andTexas Health and Safety Code, §382.017 and §382.012.

§101.1. 

# Definitions.

Unless specifically defined inthe Texas CleanAirAct (TCAA) or in the rules ofthe commission, the terms usedbythe commissionhave the meanings commonly ascnbed

# Texas Commission on Environmental Quality Chapter 101

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to them inthe field ofair pollution control. In addition to the terms that are definedby theTCAA, the following terms, when used inthe airqualityrules in this title, havethe following meanings, unless the context clearlyindicates otherwise.

(1) Account--Forthose sources requiredto be permitted under Chapter 122 ofthis title (relating to Federal Operating Permits Program), all 

# sources that are aggregated as a site. For all other sources, any combination ofsources under common ownership or control andlocated on one or more contiguous properties, orproperties contiguous exceptfor intervening roads, railroads, rights-of-way, waterways, or similar divisions.

(2) 

# Acidgas tlare--Aflare used exclusivelyfor theincineration of hydrogen sulfide and other acidic gases derivedfrom natural gas sweeteningprocesses.

(g)Agency establishedfacility identification nwnber--Forthe purposes ofSubchapter F ofthis chapter (relating to Emissions Events and Scheduled Maintenance, Startup, and ShutdownActivities), aunique alphanumeric coderequired
to be assignedbythe owner oroperator ofa regulated entitythat the emissioninventory reporting requirements of §101.1O 

# ofthis title (relating to Emissions Inventory Requirements) are applicableto eachfacility at that regulated entity.

# Texas Commission on Environmental Quality Chapter 101

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# General Air Quality Rules Rule ProjectNo. 2oo8-o30-n6-PR Page 21

(4) Ambient air--Thatportion ofthe atmosphere, external to buildings,
to whichthe general publichas access.

(5) Background--Background concentration, the level ofair contaminants that cannotbe reducedby controlling emissions from man-made sources. It

# is determinedby measuring levels in non-urban areas.

(6) Boiler--Any combustion equipmentfired with solid, liquid, and/or gaseous fuel usedto produce steam orto heatwater.

(7) Capture system--All equipment (including, but notlimited to, hoods, ducts, fans, booths, ovens, dryers, etc.) that contains, collects, andtransports an air pollutantto a control device.

(8) Capturedfacility--A manufacturing orproduction facility that generates an industrial solidwaste orhazardous waste that is routinely stored, processed, or disposed of on a sharedbasis in an integratedwaste managementunit owned, operatedby, andlocatedwithin a contiguous manufacturing complex.

(9) Carbon adsorber--An add-on control device thatuses activated carbonto adsorb volatile organic compounds from a gas stream.

# Texas Commission on Environmental Quality Chapter 101

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# GeneralAir QualityRules Rule Project No. 2ooB-030-116-PR 

# Page 22



## (10) 

# Carbon adsorption system--Acarbon adsorberwith an inlet and outletfor exhaust gases and a systemto regeneratethe saturated adsorbent.

(11) 

# Coating--Amaterial applied onto orimpregnated into a substratefor protective, decorative, orfunctional purposes. Suchmaterials include, but are not limitedto, paints, varnishes, sealants, adhesives, thinners, diluents, inks, maskants, and temporaryprotective coatings.

(12) 

# Cold solvent cleaning--Abatc1l process that uses liquid solventto

remove soils from ilie surfaces ofparts orto dry ilieparts by spraying, brushing, flushing, and/orimmersionwhile maintaining the solventbelowits boiling point. Wipe cleaning (hand cleaning) is not included inthis definition.

(13) Combustionunit--Anyboilerplant, furnace, incinerator, flare, engine, orotherdevice orsystemusedto oxidize solid, liquid, orgaseous fuels, but excluding motors and engines used in propellingland, water, and airvehicles.

(14) Combustion turbine--Any gas turbine systemiliat is 

# gas and/or liquidfuel fired with orwithout poweraugmentation. This unitis eiilierattachedto a foundation or is 

# portable equipment operated at a specific minoror major sourcefor

## Texas Commission on Environmental Quality Chapter 101

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more than 90 days in any 12-monthperiod. Two ormore gas turbines powering one shaftwillbetreated as oneunit.

(15) 

# Commercialhazardous waste managementfacility--Any hazardous waste managementfacilitythat accepts hazardous waste orpolychlorinated biphenyl compounds for a charge, except a captured facility thatdisposes onlywaste generated on-site or a facility that accepts waste onlyfrom otherfacilities owned or effectively controlledbythe sameperson.

(16) 

# Commercial incinerator--An incineratorusedto dispose ofwaste material from retail and wholesaletrade establishments.

(17) 

# Commercial medical waste incinerator--Afacility that accepts for incineration medical waste generated outside the propertyboundaries ofthe facility.

(18) 

# Component--Apiece ofequipment, including, but notlimitedto, pumps, valves, compressors, andpressure reliefvalves thathas the potentialto leak volatile organic compounds.

## Texas Commission on Environmental Quality Chapter 101

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(19) Condensate--Liquids that resultfrom the cooling and/orpressure changes ofproduced natural gas. Once these liquids areprocessed at gas plants or refineries orin anyother manner, they are no longer considered condensates.

(20) Construction-demolition waste--Waste resulting from construction or demolition projects.

(21) Control system or control device--Anypart, chemical, machine, equipment, contrivance, or combination ofsame, usedto destroy, eliminate, reduce, or controlthe emissionofair contaminants to the atmosphere.

(22) Conveyorizeddegreasing--A solvent cleaning process that uses an automated parts handling system, typicallya conveyor, to automaticallyprovide a continuous supplyofparts to be cleaned or dried using either cold solvent orvaporized solvent. Aconveyorized degreasing process is fully enclosedexceptfor the conveyorinlet and exitportals.

(23) Criteriapollutant or standard--Anypollutantfor which there is a national ambient air quality standard established under 40 Code ofFederal Regulations Part

# so.

# Texas Commission on Environmental Quality Chapter 101

- 

# GeneralAir Quality Rules Rule Project No. 2008-030-1l6-PR Page 25

(24) Custodytransfer--

# Thetransferofproduced crude oil and/or condensate, after processing and/ortreating inthe producing operations, from storage tanks or automatic transferfacilities to pipelines or any otherforms oftransportation.

(25) De

# minimis impact--A 

# change in 

# ground level concentration ofan air contaminant as aresult ofthe operation ofanynew major stationarysource or ofthe operation ofany existing sourcethathas undergone a major modification thatdoes not exceedthefollowing specified amounts.

Figure: 30 TAC §101.1(25) (No change.)



# I AIR CONTAMINANT

# IEJ~E:JEJEJ

Inhalable Particulate Matter 

# B6DDD (PMlO) 

# ISulfurDioxide 11 1•

# 0

# ~g/m311 5

# ~/m3 ICJI25

# ~g/m3 

# 10 INitrogen Dioxide 1/ 

### 1•

# 0

# ~g/m3ICJI ICJO 

# I

",",,00

# Moo,",,'" 

# IDDQJDB

# Texas Commission on Environmental Quality Chapter 101

- GeneralAir Quality Rules Rule Project No. 2008-030-n6-PR Page 26

(26) Domestic wastes--The garbage and rubbish normallyresulting from the functions oflifewithin aresidence.

(27) Emissions banking--Asystemfor recording emissions reduction credits so they maybe used ortransferred for future use.

(28) Emissions event--Anyupset event orunscheduled maintenance, startup, orshutdown activity, from a common causethatresults in unauthorized emissions ofair cont;uninants from one ormore emissions points at aregulated entity.

(29) Emissions reduction credit--Any stationary source emissions reductionthathas beenbanked in accordance with Chapter 101, SubchapterH, Division 1 ofthis title (relating to EmissionCredit Banking andTrading).

(30) Emissions reduction creditcertificate--The certificateissuedby the executive directorthat indicates the amount ofqualifiedreduction availablefor use

as offsets andthe length oftimethe reduction is 

# eligiblefor use.

(31) Emissions unit--Any part ofa stationary source that emits, orwould have the potentialto emit, any pollutant subjectto regulation underthe Federal Clean AirAct.

# Texas Commission on Environmental Quality Chapter 101

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(g2) Excess opacity event--When an opacityreading is equal to or exceeds 15 additional percentagepoints above an applicable opacitylimit, averaged over

a six-minute period.

(gg) Exempt solvent--Those carbon compounds ormixtures ofcarbon compounds used as solvents thathave been excludedfrom the definition ofvolatile organic compound.

(g4) Externalfloating roof--A cover orroofin an opentop tankthat
rests upon oris floated uponthe liquidbeing containedandis equippedwith a single or double sealto close the spacebetweenthe roofedge andtank shell. Adouble seal consists oftwo complete and separate closure seals, one above the other, containing an enclosed spacebetween them.

(g5) Federal motorvehicle regulation--Control ofAirPollutionfrom MotorVehicles andMotorVehicleEngines, 40 Code ofFederal Regulations Part 85.

(g6) Federallyenforceable--Alllimitations and conditions that are enforceable bythe United States Environmental ProtectionAgency administrator, including thoserequirements developed under40 Code ofFederal Regulations (CFR)

## Texas Commission on Environmental Quality Chapter 101

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Parts 60 and 61; requirements within any applicable state implementation plan (SIP); and any permit requirements established under40 CFR §52.21 orunder regulations approved under40 CFRPart 51, Subpart 1, including operating permits issued underthe approvedprogram that is incorporated into the SIP andthat expressly requires adherence to anypermit issued under suchprogram.

(g7) Flare--An open combustion unit (Le., lacking an enclosed combustion chamber) whose combustion airis providedbyuncontrolled ambient air aroundthe flame, andthat is used as a control device. Aflare may be equippedwith a radiant heat shield (with orwithout a refractorylining), but is not equippedwith a flame aircontrol damping systemto control the air/fuel mixture. In addition, a flare mayalso

use auxiliaryfuel. The combustionflame may be elevated orat ground level. Avapor combustor, as definedinthis section, is not considered a flare.

(g8) 

# Fuel oil--Any oil meeting theAmerican Societyfor Testing and Materials (ASTM) specifications for fuel oil inASTM Dg96-0l, Standard Specifications for Fuel Oils, revised 2001. This includes fuel oil grades 1, 1 (Low Sulfur), 2, 2 (Low Sulfur), 4 (light), 4, 5 (light), 5 (Heavy), and 6.

## Texas Commission on Environmental Quality Chapter 101

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## GeneralAir QualityRules Rule Project No. 200B-030-116-PR


## (39) 

# Fugitive emission--Anygaseous orparticulate contaminantPage 29

entering the atmosphere that could not reasonablypass through a stack, chimney, vent,

or otherfunctionally equivalent opening designedto direct orcontrol its flow.

(40) Garbage--Solidwaste consisting ofputrescible animal andvegetable
waste materials resulting from the handling, preparation, cooking, and consumption of food, including waste materials from markets, storage facilities, andhandling and sale of produce and otherfood products.

(41) Gasoline--Anypetroleum distillatehaving a Reid vaporpressure of fourpounds per squareinch (27.6 kilopascals) or greaterthat is produced for use as a motorfuel, and is commonly called gasoline.

(42) 

# Hazardous wastes--Any solidwasteidentified orlisted as a hazardous wasteby the administratorofthe United States Environmental Protection Agencyunderthe federal SolidWaste DisposalAct, as amendedby Resource Conservation and RecoveryAct, 42 United States Code, §§6901 et

# seq., as amended.

(43) 

# Heatset (used in 

# offsetlithographicprinting)--Anyoperation whereheat is required to evaporate inkoilfrom the printing ink. Hot air dryers are used
to deliver the heat.

# Texas Commission on Environmental Quality Chapter 101

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(44) 

# High-bake coatings--Coatings designedto cure attemperatures above 194 degrees Fahrenheit.

(45) 

# High-volume low-pressurespray guns--Equipmentused to apply coatings by 

# means ofa spray gun that operates between 0.1 and 10.0 pounds per square inch gauge airpressure measured atthe aircap.

(46) Incinerator--An enclosed combustion apparatus and attachments thatis used inthe process ofburning wastes forthe primarypurpose ofreducing its volume andweightby 

# removing the combustibles ofthe waste and is equipped with a flue for conductingproducts ofcombustionto the atmosphere. Any combustion device thatbums 10% or more ofsolidwaste on atotal British thermal unit (Btu) heat input basis averaged over anyone-hourperiod is consideredto be anincinerator. A combustion device withoutinstrumentation ormethodologyto determinehourly flow
rates ofsolidwaste andburning 1.0% or more ofsolidwaste on atotal Btuheat input basis averaged annuallyis also consideredto be an incinerator. An open-trenchtype (with closed ends) combustion unit may be 

# considered an incineratorwhen approvedby the executive director. Devices burning untreatedwood scraps, waste wood, or sludge from the treatment ofwastewaterfrom the process mills as a primaryfuel for heat recoveryare notincluded underthis definition. Combustion devices permitted under

## Texas Commission on Environmental Quality Chapter 101

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this title as combustion devices oilierilian incinerators will notbe considered Page 31

incinerators for application ofany rule withinthis titleprovidedthey are installed and operated in compliancewiththe condition ofall applicablepermits.

(47) 

# Industrialboiler--Aboilerlocatedonthe site ofafacility engaged in a manufacturing process where substances are transformedinto new products, including the componentparts ofproducts, by mechanical or chemical processes.

(48) 

# Industrialfurnace--Cement kilns; limekilns; aggregatekilns; phosphatekilns; coke ovens; blastfurnaces; smelting, melting, orrefining furnaces, including pyrometallurgical devices such as cupolas, reverberatorfurnaces, sintering machines, roasters, orfoundry furnaces; titanium dioxide chloride process oxidation reactors; methane reforming furnaces; pulping recoveryfurnaces; combustion devices usedinthe recovery ofsulfurvalues from spent sulfuric acid; and other devices the commission may list.

(49) 

# Industrial solidwaste--Solidwaste resulting from, orincidental to, any process ofindustryormanufacturing, or mining oragricultural operations, classified as follows.

## Texas Commission on Environmental Quality Chapter 101

- General Air Quality Rules Rule Project No. 2oo8-o30-n6-PR Page 32

(A) 

## Class 1industrial solidwaste orClass 1wasteis any industrial solidwaste designated as Class 1by the executive directoras any industrial solidwaste

ormixture ofindustrial solidwastes thatbecause ofits concentration orphysical or chemical characteristics is toxic, corrosive, flammable, a strong sensitizerorirritant, a generatorofsuddenpressureby decomposition, heat, orothermeans, andmaypose a substantial present orpotential dangerto human health orthe environmentwhen improperlyprocessed, stored, transported, orotherwise managed, including hazardous industrialwaste, as definedin §335.1 and §335.505 ofthis title (relating to Definitions and Class 1Waste Determination).

(B) Class 2industrial solidwaste is any individual solidwaste or combination ofindustrial solid wastes that cannotbe described as Class 1 orClass 3, as defined in §335.506 ofthis title (relating to Class 2 Waste Determination).

(C) Class 3 industrial solidwaste is anyinert andessentially insoluble industrial solidwaste, including materials such as rock, brick, glass, dirt, and certainplastics andrubber, etc., that are notreadily decomposable as definedin §335.507 ofthis title (relating to Class 3 Waste Determination).

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(50) 

# Internalfloating cover--Acover orfloating roofin a fixed roof tankthat rests upon oris floated upon the liquidbeing contained, and is equippedwith a closure seal or seals to closethe spacebetweenthe coveredge andtank shell.

(51) Leak--Avolatile organic compound concentrationgreaterthan 10,000 parts permillionbyvolume orthe amount specifiedby applicable rule, whicheveris 

## lower; orthe dripping or exuding ofprocess fluidbased on sight, smell, or sound.

(52) 

# Liquidfuel--A liquid combustiblemixture, not derivedfrom hazardous waste, with aheating value ofatleast5,000 Britishthermal units perpound.

(53) 

# Liquid-mounted seal--Aprimary seal mounted in continuous
contactwiththe liquidbetweenthe tankwall andthefloating roofaround the circumference ofthe tank.

(54) 

# Maintenance area--A geographic region ofthe state previously designated nonattainment underthe Federal CleanAirActAmendments of1990 and subsequently redesignatedto attainment subjectto the requirementto develop a maintenanceplan under42 United States Code, §7505a, as describedin 40 Code of Federal Regulations Part 81andin pertinentFederalRegisternotices.

# Texas Commissionon Environmental Quality Chapter 101

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implementationplan, meetingtherequirements of42 United States Code, §7505a.

(56) Marine vessel--Anywatercraftused, or capable ofbeing used, as a

means oftransportation onwater, and that is constructed or adapted to carry, 

# orthat carries, oil, gasoline, or othervolatile organicliquid inbulkas a cargo or cargo residue.

(57) Mechanical shoe seal--Ametal sheetthat is held vertically against the storage tankwall by springs orweightedlevers and is connected by

# braces to the floating roof. Aflexible coated fabric (envelope) spans the annular spacebetweenthe metal sheet and thefloating roof.

(58) Medicalwaste--Waste materials identifiedbythe Department of State Health Services as "specialwastefromhealth care-related facilities" andthose
waste materials commingled and discarded with specialwastefrom health care-related facilities.

(59) MetropolitanPlanning 

# Organization--Thatorganization designated as being responsible, togetherwith the state, for conductingthe continuing, cooperative, and comprehensive planningprocess under 23 United States Code (USC), §134 and49 USC, §1607.

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(60) Mobile emissions reduction credit--The creditobtainedfrom an enforceable, permanent, quantifiable, and surplus (to otherfederal and state rules) emissions reduction generatedby a mobile source as setforth in Chapter 114, SubchapterF ofthis title (relating to Vehicle Retirement and Mobile Emission Reduction Credits), andthathas beenbanked in 

# accordance with SubchapterH, Division 1ofthis chapter.

(61)**M~tor** 

# vehicle--A self-propelledvehicle designedfor transporting persons orproperty on a street orhighway.

(62) Motorvehicle fuel dispensing facility--Any sitewhere gasoline is dispensedto motorvehiclefuel tanks from stationary storagetanks.

(63) Municipal solidwaste--Solidwaste resulting from, orincidental to, municipal, community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes, streetcleanings, dead animals, abandoned automobiles, and all other solid waste exceptindustrial solid waste.

(64) Municipal solidwastefacility--All contiguous land, structures, other appurtenances, and improvements onthe land usedfor processing, storing, or

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disposing ofsolidwaste. A facility maybe publicly orprivately owned and may consist of several processing, storage, ordisposal operational units, e.g., one ormore landfills, surface impoundments, or combinations ofthem.

(65) Municipal solidwaste landfill--A discrete area ofland or an excavationthatreceives household waste and thatis not a land application unit, surface impoundment, injection well, orwaste pile, as those terms are defined under40 Code of Federal Regulations §257.2. A municipal solid waste landfill (MSWLF) unit also may receive othertypes ofResource Conservation and RecoveryAct Subtitle D wastes, such

as commercial solid waste, nonhazardous sludge, conditionally exempt small-quantity generatorwaste, and industrial solid waste. Such a landfill maybe publicly orprivately owned. An MSWLF unit maybe a new MSWLF unit, an existing MSWLF unit, or a lateral expansion.

(66) National ambient 

## air quality standard--Those standards establishedunder42 United States Code, §7409, including standards for carbon monoxide, lead, nitrogen dioxide, ozone, inhalable particulate matter, and sulfur dioxide.

(67) Net ground-level concentration--The concentration ofan air contaminant as measured at orbeyondthe propertyboundary minus the representative

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concentration flowing onto a property as measured at anypoint. Where there is no expected influence ofthe air contaminantflowing onto a propertyfrom other sources, the net ground level concentration maybe determinedby a measurement at orbeyond the propertyboundary.

(68) New 

## source--Any stationary source, the construction or modification ofwhich was commenced after March 5,1972.

(69) 

# Nitrogen oxides (NOX)--The sum ofthe nitric oxide and nitrogen dioxide inthe flue gas or emission point, collectivelyexpressed as nitrogen dioxide.

(70) 

# Nonattainment area--A defined region within the state thatis designatedbythe United States Environmental ProtectionAgency (EPA) as failing to
meetthe national ambient airquality standard (NAAQS or standard) for apollutantfor which a standard exists. The EPA will designate the area as nonattainmentunderthe provisions of42 United States Code, §7407(d). Forthe officiallist andboundaries of nonattainmentareas, see40 Code ofFederal Regulations (CFR) Part 81 andpertinent 

# FederalRegisternotices. The designations and classifications for the one-hour owne national ambient air quality standard in 40 CFRPart 81 were retainedforthe purpose of anti-backsliding and upon determinationby the EPAthat any requirementis no longer requiredfor purposes ofanti-backsliding, then that requirement no longer applies.

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(71) Non-reportable emissions event--Any emissions eventthat in any 24-hourperiod does not result in an unauthorized emissionfrom any emissions pointequalto orin excess ofthe reportable quantity as defined inthis section.

(72) Opacity--The degreeto which an emission ofair contaminants obstructs thetransmission oflight expressed as thepercentage oflight obstructed as measuredby an optical instrument ortrained observer.

(73) Open-top vapor degreasing--Abatch solventcleaningprocess that is opento the air andthatuses boiling solventto create solventvapor usedto clean

ordryparts through condensation ofthehot solventvapors ontheparts.

(74) Outdoorburning--Anyfire or smoke-producingprocess that is not conducted in acombustion unit.

(75) Particulatematter--Any material, exceptuncombined water, that exists as a solid orliquid inthe atmosphere orin agas stream at standard conditions.

(76) Particulate matter emissions--Allfinely-divided solid orliquid material, otherthan uncombined water, emitted to the ambient air

# as measuredby United States EnvironmentalProtectionAgency Reference Method 5, as specified at 40

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Code ofFederal Regulations (CFR) Part 60, AppendixA, modifiedto include particulate caughtby animpingertrain; by an equivalent or alternative method, as specified at 40 CFRPart 51; orby a test method specified in an approved stateimplementation plan.

(77) 

# Petroleum refinery--Anyfacility engagedinproducing gasoline, kerosene, distillatefuel oils, residual fuel oils, lubricants, or otherproducts through distillation ofcrude oil, orthrough the redistillation, cracking, extraction, reforming, or otherprocessing ofunfinished petroleum derivatives.

(78) PM1O

## --Particulate matterwithan aerodynamic diameterless than or equalto a nominal ten micrometers as measuredby areference methodbased on 40 Code ofFederal Regulations (CPR) Part 50, Appendix

# J, and designatedin accordance with 40 CFRPart 53, orby an equivalent method designatedwiththat Part 53.

(79) 

# PM.o 

## emissions--Finely-divided solid orliquidmaterial with an aerodynamic diameterless than orequalto a nominal ten micrometers emittedto the ambient air as measuredby an applicable reference method, oran equivalent or alternative method specifiedin 40 Code ofFederal Regulations Part 51, orby atest method specifiedin an approved state implementation plan.

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(80) Polychlorinatedbiphenyl compound--Acompound subjectto 40 Code ofFederal Regulations Part 761.

(81) Process orprocesses--Any action, operation, ortreatment embracing chemical, commercial, industrial, ormanufacturing factors such as combustion units, kilns, stills, dryers, roasters, and equipmentusedin connection therewith, and all othermethods orforms ofmanufacturing orprocessing thatmay emit smoke, particulate matter, gaseous matter, orvisible emissions.

(82) Process weight perhour--"Process weight" is the total weight of all materials introduced orrecirculated into any specificprocess thatmay cause any discharge ofair contaminants into the atmosphere. Solid fuels chargedinto theprocess willbe considered as part oftheprocess weight, butliquid and gaseous fuels and combustion airwill not. The "process weightperhour" 

# will be derivedby dividing the total process weightbythe number ofhours in one complete operationfrom the beginning ofany givenprocess to the completionthereof, excluding anytime during that the equipmentused to conducttheprocess is 

## idle. Forcontinuous operation, the "process weight perhour" will be derivedby dividing the total process weightfor a 24- hourperiodby 24.

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(83) Property--Alllandunder common control or ownership coupled with all improvements on suchland, and all fixed ormovable objects on suchland, or anyvessel onthe waters ofthis state.

(84) 

# Reasonablefurther progress--Annual incremental reductions in emissions ofthe applicable air contaminantthat are sufficientto providefor attainment ofthe applicable national ambient air quality standardin the designated nonattainment

areas bythe date requiredin the state implementation plan.

(85) 

# Regulated entity--All regulated units, facilities, equipment, structures, or sources at one street address orlocationthat are ownedor operatedbythe

same person. Theterm includes any propertyundercommon ownership or control identified in apermit orusedin conjunction with theregulated activity atthe same street address orlocation. Owners or operators ofpipelines, gathering lines, and flowlines undercommon ownership or control in aparticularcounty maybetreated as a single regulated entityfor purposes ofassessment and regulation ofemissions events.

(86) 

# Remote reservoir cold solvent cleaning--Anycold solvent cleaning operation inwhichliquid solventis pumpedto a sink-likeworkareathatdrains solventbackinto an enclosed containerwhile parts arebeing cleaned, allowing no solventto pool in the workarea.

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(87) 

# Reportable emissions event--Any emissions eventthatin any 24- hourperiod, results in an unauthorized emissionfrom any emissions pointequal to orin

excess ofthe reportable quantity as definedinthis section.

(88) 

# Reportable quantity (RQ)--Is as follows:

(A) 

## for individual air contaminant compounds and specifically listedmixtures by name or ChemicalAbstracts Service (CAS) number, either:

(i) the lowestofthe quantities:

(I) 

## listedin40 Code ofFederal Regulations (CFR) Part 302, Table 302.4, the column "final RQ";

(II) listedin 40 CFR Part 355, AppendixA, 

## the column "Reportable Quantity"; or

(III) listed as follows:

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(-a-) acetaldehyde -1,000 pounds, exceptinthe Houston-Galveston-Brazoria (HGB) and Beaumont-PortArthur (BPA) owne nonattainment areas as defined in paragraph (70) ofthis section, wherethe RQ mustbe 100pounds;

(-b-) butanes (anyisomer)

- 5,000 pounds;

(-c-) butenes (anyisomer, except 1,3- butadiene)

- 5,000 pounds, exceptinthe HGB and BPAozonenonattainment areas as defined inparagraph (70) ofthis section, wherethe RQ must be 100 pounds;

(-d-) carbon monoxide

- 5,000 pounds;

(-e-) 1-chloro-l,1-difluoroethane (HCFC-142b)

- 5,000 pounds;

(-f-) chlorodifluoromethane (HCFC-22)

- 5,000 pounds;

(-g-) 1-chloro-l-fluoroethane (HCFC-151a)- 5,000 pounds;

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(-h-) chlorotluoromethane (HCFC-31)

- 5,000 pounds;

(-i-) chloropentatluoroethane (CFC-115)- 5,000 pounds;

(-j-) 2-chloro-l,I,I,2-tetratluoroethane (HCFC124)

- 5,000 pounds;

(-k-) l-chloro-l,I,2,2 tetrafluoroethane (HCFC124a) - 5,000 pounds;

(-1-) 

## 1,1,1,2,3,4,4,5,5,5-decat1uoropentane (HFC 43-10mee)

- 5,000 pounds;

(-m-) decanes (anyisomer)

- 5,000 pounds;

(-n-) 1,I-dichloro-l-tluoroethane (HCFC-141b)- 5,000 pounds;

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(-0-) 

## g,g-c!ichloro-1,1,2,2-pentafluoropropane (HCFC- 225ca)

- 5,000 pounds;

(-p-) 1,g-c!ichloro-1,1,2,2,g-pentafluoropropane (HCFC-225cb)

- 5,000 pounds;

(-q-) 1,2-dichloro-1,1,2,2-tetrafluoroethane (CFR-114)

- 5,000 pounds;

(-r-) 1,1- dichlorotetrafluoroethane (CFC-114a)

- 5,000pounds;

{-s-) 1,2-c!ichloro-1,1,2-trifluoroethane (HCFC12ga)

- 5,000 pounds;

(-t-) 1,1-c!ifluoroethane (HFC-152a)

- 5,000 pounds;

(-u-) c!ifluoromethane (HFC-g2)

- 5,000

. pounds;

# Texas Commission on Environmental Quality Chapter 101

- GeneralAir Quality Rules Rule ProjectNo. 2008-030-n6-PR (-v-) ethanol- 5,000 pounds; Page 46

(-w-) ethylene

- 5,000 pounds, exceptin the HGB and BPAozone nonattainment areas as definedin paragraph (70) ofthis section, where the RQ mustbe 100 pounds;

(-x-) ethylfluoride (HFC-161)

- 5,000 pounds;

(-y-) 1,1,1,2,3,3,3-heptafluoropropane (HFC227ea)

- 5,000 pounds;

(-z-) 1,1,1,3,3,3-hexafluoropropane (HFC236fa)

- 5,000 pounds;

(-aa-) 1,1,1,2,3,3-hexafluoropropane (HFC236ea)

- 5,000 pounds;

(-bb-) hexanes (anyisomer)

- 5,000 pounds;

(-cc-) isopropyl alcohol

- 5,000 pounds;

# Texas Commission on Environmental Quality Chapter 101

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- 5,000 pounds; Page47

(-ee-) octanes (anyisomer)

- 5,000 pounds;

(-ff-) 

# oxides ofnitrogen

- 200 pounds in ozone nonattainment, ozone maintenance, early action compact areas, Nueces County, and SanPatricio County, and5,000 pounds in all 

# other areas ofthe state, which shouldbe usedinstead ofthe RQs for nitrogen oxide andnitrogen dioxide providedin40 CFRPart 302, Table 302.4, the column "final RQ";

(-gg-) pentachlorofluoroethane (CFR-lll)

- 5,000 pounds;

(-hh-) 1,1,1,3,3-pentafluorobutane (HFC365mfc)

- 5,000 pounds;

(-ii-) 

# pentafluoroethane (HFC-125)

- 5,000 pounds;

(-jj-) 1,1,2,2,3-pentafluoropropane (HFC245ca)

- 5,000 pounds;

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(-kk-) 1,1,2,3,3-pentatluoropropane (HFC245ea)

- 5,000 pounds;

(-ll-) 1,1,1,2,3-pentatluoropropane (HFC245eb)

- 5,000 pounds;

(-mm-) 1,1,1,3,3-pentatluoropropane (HFC245fa)

- 5,000 poun

# 9s;

(-nn-) pentanes (anyisomer)

- 5,000 pounds;

(-00-) 

## propane - 5,000 pounds;

(-pp-) propylene

- 5,000 pounds, exceptinthe HGB and BPAozone nonattainment areas as defined in paragraph (70) ofthis section, where the RQ mustbe 100pounds;

(-qq-) 1,1,2,2-terachlorodifluoroethane (CFR112)

- 5,000 pounds;

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(-rr-) 1,1,1,2-tetrachlorodifluoroethane (CFC112a) -5,000 pounds;

(-ss-) 1,1,2,2-tetrafluoroethane (HFC-134)- 5,000 pounds;

(-tt-) 

# 1,1,1,2-tetrafluoroethane (HFC-134a)

- 5,000 pounds;

(-uu-) 1,1,2-trichloro-l,2,2-trifluoroethane (CFR-l13)

- 5,000 pounds;

(-vv-) 1,1,I-trichloro- 2,2,2- trilfloroethane (CFC- l13a)

- 5,000 pounds;

(-ww-) 

# 1,1,I-trifluoro-2,2-dichloroethane (HCFC-123)

- 5,000 pounds;

(-xx-) 1,1,I-trifluoroethane (HFC-143a)

- 5,000 pounds;

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(-yy-) 

## trifluoromethane (HFC-23)

- 5,000 pounds; or

(-'Cl-) 

## toluene

- 1,000pounds, except in the HGB and BPA ozone nonattainment areas as definedin paragraph (70) ofthis section, where the RQ mustbe 100pounds;

(ii) ifnotlisted in clause (i) ofthis subparagraph, 100 pounds;

(B) for mixtures ofair contaminant compounds:

(i) where the relative amount ofindividual aircontaminant compounds is known through common process knowledge orpriorengineering analysis

ortesting, any amount ofan individual air contaminant compound that equals or exceeds the amount specified in subparagraph (A) ofthis paragraph;

(ii) wherethe relative amount ofindividual air contaminant compounds in subparagraph (A)(i) ofthis paragraph is notknown, any amount ofthe mixturethat equals or exceeds the amount for any single air contaminant compound that is presentinthe mixture and listed in subparagraph (A)(i) ofthis paragraph;

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(iii) 

## where each ofthe individual air contaminant compounds listedin subparagraph (A)(i) ofthis paragraph areknown tobelessthan 0.02% by weight ofthe mixture, and each ofthe otherindividual aircontaminant compounds coveredby subparagraph (A)(ii) ofthis paragraph areknown to beless than 2.0% by weight ofthe mixture, anytotal amount ofthe mixture ofair contaminant compounds greaterthan orequal to 5,000 pounds; or

(iv) where natural gas excluding carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen or air emissions from crude oil areknown to bein an amount greaterthan or equal to 5,000 pounds or the associatedhydrogen sulfide andmercaptans in a total amount greaterthan 100 pounds, whicheveroccurs first;

(C) for opacityfromboilers and combustionturbines as definedin this sectionfueledby natural gas, coal, lignite, wood, fuel oil containinghazardous air pollutants at a concentration ofless than 0.02% byweight, opacitythatis equal to or exceeds 15 additionalpercentagepoints above the applicablelimit, averaged over a sixminute period. Opacityis the only RQ applicableto boilers and combustionturbines describedinthisparagraph; or

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(D) for facilities where aircontaminantcompounds are measured directlyby a continuous emission monitoring systemproviding updatedreadings at a minimum 1s-minuteinterval an amount, approvedbythe executive directorbased on any relevant conditions and a screening model, thatwouldbe reportedpriorto ground level concentrations reaching at any distancebeyondthe closestregulated entity propertyline:

(i) 

## less than one-halfofany applicable ambient air standards; and

(ii) 

## lessthantwo times the concentration ofapplicable air emissionlimitations.

(89) Rubbish--Nonputrescible solidwaste, consisting ofboth combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics,yardtrimmings, leaves, and similarmaterials. Noncombustible rubbish includes glass, crockery, tin cans, aluminum
cans, metalfurniture, andlike materials that will not burn at ordinaryincinerator temperatures (1,600 degrees Fahrenheitto 1,800 degrees Fahrenheit).

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(90) Scheduledmaintenance, starhtp, or shutdown aetivity--For activities with unauthorized emissions that are expectedto exceedareportable quantity (RQ), a scheduled maintenance, startup, or shutdown activityis an activitythat the

owner or operator ofthe regulatedentitywhetherperforming or otherwise affectedby the activity, provides prior notice and afinal report as requiredby §101.211 of

# this title (relating to ScheduledMaintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements); the notice orfinal reportincludes the information requiredin §101.211 ofthis title; andthe actual unauthorized emissions from the activity do notexceed the emissions estimates submittedinthe initial notificationbymore than

an RQ. For activities with unauthorized emissions that are notexpectedto, and do not, exceed an RQ, a scheduled maintenance, startup, or shutdown activity is onethatis recorded as requiredby §101.211 ofthis title. Expected excess opacity events as describedin §101.201(e) ofthis title (relating to Emissions Event Reporting and Recordkeeping Requirements) resultingfrom scheduledmaintenance, startup, or shutdown activities are those thatprovide priornotice (ifrequired), and arerecorded and reported as requiredby §101.211 ofthis title.

(91) Sludge--Any solid or semi-solid, orliquidwaste generatedfrom a municipal, commercial, orindustrial wastewatertreatmentplant; water supply
treatmentplant, exclusive ofthe treated effluentfrom a wastewatertreatmentplant; or airpollution control equipment.

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(92) Smoke--Small gas-born particles resulting from incomplete Page 54

combustion consisting predominately ofcarbon and other combustiblematerial and presentin sufficient quantityto be visible.

(93) 

# Solidwaste--Garbage, rubbish, refuse, sludgefrom awastewater
treatment plant, water supplytreatmentplant, or air pollution control equipment, and other discarded material, including solid, liquid, semisolid, or containerized gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations andfrom community and institutional activities. Theterm does not include:

(A) solid or dissolvedmaterial in domestic sewage, or solid or dissolved material in irrigation return flows, orindustrial discharges subjectto regulationbypermit issued underthe Texas Water Code, Chapter 26;

(B) soil, dirt, rock, sand, and other natural or man-made inert solid materials usedto fill land, if

## the object ofthe fill is to make the land suitablefor the construction ofsurface improvements; or

(C) waste materialsthat resultfrom activities associated withthe exploration, development, orproduction ofoil or gas, or geothermal resources, and

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other substance or material regulatedbythe Railroad Commission ofTexas under Natural Resources Code, §91.101, unless the waste, substance, ormaterial results from activities associatedwith gasoline plants, natural gas liquids processingplants, pressure maintenance plants, orrepressurizing plants and is hazardous waste as definedbythe administrator ofthe United States Environmental ProtectionAgencyunderthe federal SolidWaste DisposalAct, as amendedby Resource Conservation andRecoveryAct, as amended (42 United States Code, §§6901 etseq.).



# (94) 

# Sour crude--Acrude oilthatwill emit a sourgas whenin equilibrium at atmospheric pressure.

(95) 

# Sourgas--Any natural gas containing morethan 1.5 grains of hydrogen sulfide per 100 cubic feet, ormore than 30 grains oftotal sulfurper 100 cubic feet.

(96) Source--Apoint oforigin ofair contaminants, whetherprivately or publiclyownedor operated. Upon request ofa source owner, the executive director shall determine whether multipleprocesses emitting aircontaminants from a singlepoint of emissionwillbetreated as a single source or as multiple sources.

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(97) Specialwaste from health care-relatedfacilities--A solidwaste that ifimproperlytreated orhandled, may serveto transmitinfectious disease(s) and thatis comprised ofthe following: animal waste, bulkbloodandbloodproducts, microbiological waste, pathologicalwaste, and sharps.

(98) Standardconditions--Acondition atatemperature of68 degrees Fahrenheit (20 degrees Centigrade) and a pressure of14.7pounds per squareinch absolute (101.3 kiloPascals).

(99) Standardmetropolitan statistical area--An areaconsisting ofa county or one or more contiguous counties that is officially so designatedby the United States Bureau ofthe Budget.

(100) Submergedfill 

## pipe--Afill pipethatextends fromthe top ofa tanktohave a maximum clearance ofsixinches (15.2 centimeters) from thebottom or, when appliedto a tankthatis loadedfrom the side, thathas a discharge opening entirely submergedwhen the pipe usedto withdrawliquidfrom the tankcan no longerwithdraw liquid in normal operation.

(101) Sulfurcompounds--All inorganic or organic chemicals having an atom or atoms ofsulfurin their chemical structure.

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(102) Sulfuric acidmist/sulfuric acid--Emissions ofsulfuric acid mist and sulfuric acid are considered to bethe same air contaminantcalculated as H2 

## S04 

# and
mustinclude sulfuric acidliquid mist, sulfurtrioxide, and sulfuric acidvapor as measuredbyTestMethod 8 in40 Code ofFederal Regulations Part,6o, AppendixA.



# (103) Sweetcrude oil and gas--Those crudepetroleumhydrocarbons that are not "sour" as definedin this section.

(104) Total suspendedpartieulate--Particulate matter as measuredby the method descnbedin40 Code ofFederal Regulations Part 50, Appendix B.

(105) Transferefficiency--The amount ofcoating solids depositedonto the surface or apart ofproductdividedby

# the total amountofcoating solids deliveredto the coating application system.

(106) True vaporpressure--The absolute aggregatepartialvapor pressure, measured inpounds persquare inch absolute, ofallvolatile organic compounds atthetemperature ofstorage, handling, orprocessing.

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(107) 

# Unauthorized emissions--Emissions ofany air contaminant except carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygenthat exceed any air emissionlimitation in apermit, rule, or orderofthe commission oras authorized by

## Texas CleanAirAct, §382.0518(g).

(108) 

# Unplanned maintenance, startup, 

# or shutdown activity-- For activities with unauthorized emissions that are expected to exceed areportable quantity orwith excess opacity, anunplanned maintenance, startup, orshutdown activity is:

(A) 

## a startup orshutdown thatwas 

## not part ofnormal orroutine facility operations, is unpredictable as to timing, and is not the type ofevent normally authorized bypermit; or

(B) a maintenance activitythat arises from sudden and unforeseeable events beyondthe control ofthe operatorthat requires the immediate corrective actionto minimize or avoid an upset or malfunction.

(109) Upset event--An unplanned and unavoidablebreakdownor excursion ofaprocess or operationthat results in unauthorized emissions. A maintenance, startup, orshutdown activitythat was reported under §101.211 ofthis title

# Texas Commission on Environmental Quality Chapter 101

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Recordkeeping Requirements), buthad emissions that exceededthereported amountby

morethan areportable quantity due to an unplanned and unavoidablebreakdown or excursionofaprocess oroperation is an upset event.

(110) Utility

# boiler--Aboilerusedto produce electricpower, steam, or heated or cooled air, or other gases orfluids for sale.

(111) Vapor combustor--Apartiallyenclosed combustion device used to destroyvolatile organic compounds by smokeless combustionwithout extracting energy in the form ofprocess heat or steam. The combustion flame maybepartiallyvisible, but
at no time does the device operatewith an uncontrolled flame. Auxiliaryfuel and/or a flame aircontrol damping systemthat can operate at all times to control the air/fuel mixture to the combustor's flame zone, mayberequired to ensure smokeless combustion during operation.

(112) Vapor-mounted seal--Aprimary seal mounted so there is an annular space underneaththe seal. The annularvapor space is 

# boundedbythebottom ofthe primary seal, the tankwall, the liquid surface, andthe floating roofor cover.

## Texas Commission on Environmental Quality Chapter 101

- 

## General Air QualityRules Rule Project No. 2008'-ogO-116-PR Page 60

(l1g) Vent--Anyduct, stack, chimney, flue, conduit, orotherdevice used
to conduct air contaminants into the atmosphere.

(114) VISible emissions--Particulate orgaseous matterthat canbe detectedbythe human eye. The radiant energyfrom an openflame is 

## not considered a visible emission underthis definition.

(115) Volatile organic 

## compound--As defined in 40 Code ofFederal Regulations §S1.100(s), except §S1.100(S)(2)

- (4), as amended onNovember 29,2004 (69 FR 69290).

(116) Volatile organic compound (VOC) water 

## separator--Any tank, box, sump, orother containerinwhich anyVOC, floating on orcontained in water entering such tank, box, sump, or other container, is physicallyseparated and removed from suchwater priorto outfall, drainage, orrecoveryofsuch water.

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SUBCHAPTERA: 

## DEFINITIONS §116.12



## STATUTORYAUTHORITY The amendmentis adoptedunderTexas Water Code §5.102, concerning General Powers, §5.103, concerning Rules, and §5.105 concerning General Policy, which authorize the commission to adoptrules as necessaryto carry outits power and duties underthe TexasWater Code; Texas Health and Safety Code, §382.017, whichprovides the commission withthe authorityto adopt rules consistentwith the policy and purposes ofthe Texas CleanAirAct 

## (TCAA); §382.on, concerning General Powers and Duties, which authorizes the commission to control the quality ofthe state's air; §382.012, concerning StateAir Control Plan, which authorizes the commission to prepare and develop a comprehensive plan forthe proper control ofthe state's air; and §382.051, concerning PermittingAuthority ofthe Commission, which authorizes the commission to issuepermits to construct a newfacility ormodify an existing facility that may emitair contaminants, and authority to adopt rules necessary to comply with changes in 

## federal law orregulations applicable to permits issued underthe TCAA.

The amendmentimplements Texas Water Code, §5.103; andTexas Health and Safety Code, §§382.017, 382.012, and 382.051.

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§116.12. Nonattainmentand Prevention ofSignificant Deterioration Review Definitions.

Unless specifically definedin the Texas CleanAirAct (TCAA) or in the rules ofthe commission, the terms usedby the commission have the meanings commonly ascribed
to them inthe field ofair pollution control. The terms in this section are applicable to permitreview for major source construction and major source modification in nonattainment areas. In additionto the terms that are definedby the TCAA, andin §101.1 ofthis title (relating to Definitions), the following words andterms, whenusedin Chapter 116, SubchapterB, Divisions 5 and 6 ofthis title (relating to Nonattainment ReviewPermits andPrevention ofSignificant Deterioration Review); and Chapter 116, SubchapterC, Division 1ofthis title (relatingto Plant-WideApplicability Limits), have the following meanings, unless the context clearly indicates otherwise.

(1) Actual emissions--Actual emissions as ofa particular date are equal to the average rate, intons peryear, at which the unit actually emittedthe pollutant during the 24-month periodthat precedes the particular date andthatis representative of normal source operation, exceptthatthis definition shall not apply for calculating whether a significant emissions increase has occurred, orfor establishing a plant-wide applicabilitylimit. Instead, paragraph (3) ofthis section relating to baseline actual emissions shall apply for this purpose. The executive director shall allowthe use ofa differenttime period upon a determinationthat itis more representative ofnormal

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source operation. Actual emissions shall be calculatedusing the unit's actual operating hours, production rates, andtypes ofmaterials processed, stored, or combusted during the selectedtime period. The executive director may presumethatthe source-specific allowable emissions for the unit are equivalentto the actual emissions, e.g., when the allowable limitis reflective ofactual emissions. For any emissions unitthathas not begun normal operations onthe particular date, actual emissions shall equal the potential to emitofthe unit onthat date.

(2) Allowable emissions--The emissions rate ofa stationary source, calculatedusing the maximum rated capacity ofthe source (unless the source is subject
to federally enforceable limits thatrestrictthe operating rate, orhours ofoperation, or both), andthe most stringent ofthe following:

(A) the applicable standards specified in40 Code ofFederal Regulations Part 60 or 61;

(B) the applicable state implementation plan emissions limitation including those with a future compliance date; or

(C) the emissions rate specified as a federally enforceable permit condition including those with a future compliance date.

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(3) Baseline actual emissions--The rate ofemissions, in tons peryear, ofa federally regulated new source review pollutant.

(A) For any existing electric utility steam generating unit, baseline actual emissions means the rate, in tons peryear, atwhichthe unit actually emittedthe pollutant during any consecutive 24-monthperiodselectedby the owner or operator within the five-year periodimmediately preceding whenthe owner oroperatorbegins actual construction ofthe project. The executive director shall allowthe use ofa differenttime period upon a determination thatit is more representative ofnormal

source operation.

(B) For an existing facility (otherthan an electric utility steam generating unit), baseline actual emissions means the rate, in tons peryear, atwhich the facility actually emittedthe pollutant during any consecutive 24-month period selected by the owner or operator withinthe ten-year periodimmediately preceding either the date the owner or operatorbegins actual construction ofthe project, orthe date a complete permit application is receivedfor a permit. The rate shall be adjusted downwardto exclude any emissions thatwouldhave exceeded an emissionlimitation \\ith which the major stationary source must currently comply with the exception of those requiredunder40 Code ofFederal Regulations Part 63, had such major stationary

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sourcebeen requiredto complywith such limitations during the consecutive 24-month period.

(C) For a new facility, thebaseline actual emissions for purposes of determining the emissions increasethatwill resultfrom the initial construction and operation ofsuch unit shall equal zero; and for all otherpurposes during thefirst two years following initial operation, shall equal the unit's potentialto emit.

(D) The actual rate shallbe adjusted downwardto exclude any noncompliant emissions thatoccurred during the consecutive 24-month period. For each regulated new source review pollutant, when a projectinvolves multiple facilities, only

one consecutive 24-month period mustbe usedto determinethebaseline actual emissions for the facilities being changed. Adifferent consecutive 24-monthperiod can be usedfor eachregulated new source review pollutant. The rate shall notbebased on any consecutive 24-month period for whichthere is inadequate informationfor determining annual emissions, in tons per year, andfor adjusting this amount. Baseline emissions cannot occur priorto November 15, 1990.

(E) The actual emissions rate shall include fugitive emissions to the
extentquantifiable. Until March 1, 2016, emissions previously demonstrated as emissions events or historically exempted under Chapter 101 ofthis title (relating to

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General Air Quality Rules) may be includedto the extent that they havebeen authorized,

or are being authorized.

(4) Basic design parameters--For a process unit at a steam electric generating facility, the owner or operator may select as its basic design parameters either maximum hourly heat input and maximum hourlyfuel consumption rate or maximum hourly electric output rate and maximum steam flow rate. When establishing fuel consumption specifications in terms ofweight orvolume, the minimum fuel quality based on British thermal units content shall beusedfor determining the basic design parameters for a coal-fired electric utility steam generating unit. Thebasic design parameters for anyprocess unit that is not at a steam electric generating facility are maximum rate offuel orheat input, maximum rate ofmaterialinput, or maximum rate ofproduct output. Combustion process units will typically use maximum rate offuel input. For sources having multiple end products andraw materials, the owner or operator shall consider the primary product orprimaryraw material when selecting a basic design parameter. The owner or operator maypropose an alternativebasic design parameterfor the source's process units to the executive director ifthe owner or operatorbelieves the basic design parameter as definedin this paragraph is not appropriatefor a specific industry or type ofprocess unit. If

## the executive director approves oftheuse ofan alternative basic design parameter, that basic design parameter

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shall be 

## identified and compliance requiredin a condition in a permitthat is legally enforceable.

(A) The owner or operator shalluse credibleinformation, such as results ofhistoric maximum capabilitytests, design informationfrom the manufacturer,

orengineering calculations, in establishingthe magnitude ofthebasic design parameter.

(B) 

# Ifdesign informationis notavailable for a process unit, the

owner or operator shall determine the process unit's basic design parameter(s) using the maximum value achievedby the process unitinthe five-year period immediately preceding the planned activity.

(C) Efficiency ofa process unit is not a basic design parameter.

(5) Begin actual construction--In general, initiation ofphysical on-site construction activities on an emissions unitthat are ofa permanentnature. Such activities include, but are notlimitedto, installation ofbuilding supports and foundations, laying ofunderground pipework, and constructionofpermanent storage structures. With respectto a change in method ofoperation, this term refers to those onsite activities other thanpreparatory activities that markthe initiation ofthe change.

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(6) Building, structure, facility, or installation--All ofthe pollutantemitting activities thatbelong to the same industrial grouping, are located in one or

more contiguous or adjacentproperties, and are under the control ofthe sameperson (orpersons under common control). Pollutant-emitting activities are consideredto be part ofthe same industrial grouping ifthey belong to the same "majorgroup" (i.e., that have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 supplement.

(7) Clean coal technology--Any technology, including technologies applied
atthe precombustion, combustion, orpost-combustion stage, at a newor existing facility thatwill achieve significantreductions in air emissions ofsulfur dioxide or oxides ofnitrogen associatedwith the utilization ofcoal inthe generation ofelectricity,

orprocess steamthat was not in widespread use as ofNovember 15, 1990.

(8) Clean coal technology demonstration project--Aproject using funds appropriated underthe heading "DepartmentofEnergy-Clean Coal Technology," up to a total amountof$2.5 billion for commercial demonstration ofclean coal technology, or similarprojects funded through appropriations for the United States Environmental ProtectionAgency. Thefederal contribution for a qualifying projectshall be atleast 20% ofthe total costofthe demonstrationproject.

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(9) Commence--As appliedto construction ofa major stationary source or major modification, means thatthe owner or operatorhas all necessary preconstruction approvals orpermits and eitherhas:

(A) 

## begun, or caused to begin, a continuous program ofactual onsite construction ofthe source, to be completed within a reasonable time; or

(B) entered intobinding agreements orcontractual obligations, whichcannotbe canceled or modifiedwithout substantial loss to the owneror operator,
to undertake a program ofactual construction ofthe source to be completedwithin a reasonable time.

(10) 

## Construction--Anyphysical change or change inthe methodof operation (including fabrication, erection, installation, demolition, or modification ofan emissions unit) that would resultin a change in actual emissions.

(11) Contemporaneous period--For major sources the periodbetween:

(A) 

## the date thatthe increase from the particular change occurs; and

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(B) 60 months prior to the date thatconstruction on the particular change commences.

(12) 

## De 

## minimis thresholdtest (netting)--Amethod ofdetermining ifa proposed emission increase will trigger nonattainment orprevention ofsignificant deterioration review. The summation ofthe proposed project emissionincrease in tons peryear with all other creditable source emission increases and decreases during the contemporaneous period is comparedto the significantlevel for thatpollutant. If

## the significantlevel is exceeded, thenprevention ofsignificant deterioration and/or nonattainment review is required.

(13) Electric utility stearn generating unit--Any stearn electric generating unitthat is constructedfor the purpose ofsupplying more than one-third ofits potential electric output capacity and more than 25 megawatts electrical outputto any utility power distribution system for sale. Any stearn suppliedto a steam distribution system for the purpose ofproviding stearn to a stearn-electricgeneratorthatwouldproduce electrical energyfor sale is included in determining the electrical energy output capacity ofthe affectedfacility.

(14) Federallyregulated new source review pollutant--As defined in subparagraphs (A)

- (D) ofthis paragraph:

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(A) any pollutantfor which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified bythe United States Environmental ProtectionAgency;

(B) any pollutantthat is subjectto any standard promulgatedunder Federal CleanAirAct (FCAA), §111;

(C) 

## any Class I or II substance subjectto a standardpromulgated under or establishedby FCAA, TitleVI; or

(D) any pollutantthat otherwise is 

## subjectto regulation undertlle FCAA; exceptthatany or all hazardous air pollutants eitherlistedin FCAA, §112 or addedto tlle listunder FCAA, §112(b)(2), which have notbeen delistedunder FCAA, §112(b)(3), are not regulated new source review pollutants unless tlle listedhazardous air pollutantis also regulated as a constituent orprecursor ofageneral pollutantlisted under FCAA, §108.

(15) Lowest achievable emission rate--For any emittingfacility, that rate of emissions ofa contaminanttllatdoes notexceedtlle amountallowable under applicable

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new source performance standards promulgatedbythe United States Environmental ProtectionAgency under42 United States Code, §7411, and that reflects the following:

(A) the most stringent emissionlimitation that is containedinthe rules and regulations ofany approved state implementation plan for a specificclass or category offacility, unless the owner or operator ofthe proposed facility demonstrates that suchlimitations are not achievable; or

(B) the most stringent emissionlimitation that is achieved in practiceby a specific class or category offacilities, whicheveris more stringent.

(16) Major facility--Any facility that emits or 

# has the potential to emit 100
tons peryear or more ofthe plant-wide applicabilitylimit (PAL) pollutantin an attainment area; or any facility that emits orhas the potential to emit the PALpollutant in an amountthat is equalto or greaterthan the major sourcethreshold for the PAL pollutantin Table I ofthis sectionfor nonattainment areas.

(17) Major stationary source--Any stationary source that emits, orhas the potentialto emit, a threshold quantity ofemissions or more ofany air contaminant (including volatile organic compounds (VOCs) for which a national ambient air quality standardhasbeen issued. The major source thresholds are identified in Table I ofthis

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sectionfor nonattainmentpollutants andthe major source thresholds for prevention of significant deterioration pollutants are identifiedin 40 Code ofFederal Regulations (CFR) §S1.166(b)(1). A sourcethat emits, orhas the potentialto emit a federally regulated new source review pollutant atlevels greaterthan those identifiedin 40 CFR §S1.166(b)(1) is considered majorfor all prevention ofsignificant deterioration pollutants. Amajor stationary source that is 

## majorforVOCs or nitrogen oxides is consideredto be majorfor ozone. The fugitive emissions ofa stationary source shall not be includedin determining for any ofthe purposes ofthis definition whether itis a major stationary source, unless the sourcebelongs to one ofthe categories ofstationary

sources listedin 40 CFR §S1.16s(a)(1)(iv)(C).

(18) Major modification--As follows.

(A) 

## Any physical change in, or change inthe method ofoperation of

a major stationary source that causes a significantproject emissions increase and a significant net emissions increase for any federally regulated new source review pollutant. At a stationary sourcethatis not majorpriorto the increase, the increaseby itselfmust equal or exceedthat specifiedfor a major source. At an existing major stationary source, the increase mustequal or exceedthat specifiedfor a major modificationto be significant. The major source and significantthresholds are provided inTable I ofthis sectionfor nonattainmentpollutants. The major source and significant

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thresholds for prevention ofsignificantdeterioration pollutants are identifiedin 40 Code ofFederal Regulations §51.166(b)(1) and (23), respectively.

Figure: 30 TAC §n6.12(18)(A)

TABLE I
MAJOR SOURCE/MAJORMODIFICATION EMISSION THRESHOLDS

POLLUTANT MAJOR SIGNIFICANT OFFSET RATIO designation' SOURCE LEVEL> minimum tons/year tons/year

OZONE (VOC, NOx)3 I marginal 100 40 1.10 to 1

II moderate 100 40 1.15 to 1

III serious 50 25 1.20 to 1

IV severe 25 25 1.30 to 1

CO I moderate 100 100 1.00 to 14

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II serious 50 50 1.00 to 14

S02 100 40 1.00 to 14

PMlO 

## I moderate 100 15 1.00 to 14

II serious 70 15 1.00 to 14
NO,s 100 40 1.00 to 14

Lead 100 0.6 1.00 to 14

1 

## Texas nonattainment area designations as definedin §101.1(70) ofthis title.

2The significantlevel is applicable only to existing major sources and shallbe evaluated after netting, unless the applicant chooses to apply nonattainmentnew source review (NNSR) directly to the project. The appropriate netting triggers for existing major

sources ofNOx andVOC are specified in §116.150 ofthis title (relating to New Major Source or Major Modification in Ozone NonattainmentAreas) andfor other pollutants

are equalto the significantlevel listedinthis table.

3

## VOC and NOx are precursors to ozone formation and shouldbe quantifiedindividually
to determine whether a source is subjectto NNSRunder §116.150 ofthis title. 4The offsetratio is specifiedto be greater than 1.00 to 1.

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VOC 

# =volatile organic compounds NOx = 

## oxides ofnitrogen N02

# =nitrogen dioxide CO 

# =carbon monoxide S02 

# =sulfur dioxide PMlO 

### = 

## particulate matterwith an aerodynamic diameter less than orequal to ten microns

5

## Applies to the NAAQS for nitrogen dioxide (N02 ).

(B) Aphysical change or change inthe method ofoperation shall
notinclude:

(i) 

## routine maintenance, repair, and replacement;

(ii) use ofan alternativefuel orraw materialby reason ofan orderunder the Energy Supply and Environmental CoordinationAct of1974, §2(a) and (b) 

## (or any superseding legislation) orby reason ofa natural gas curtailmentplan under the Federal PowerAct;

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(iii) use ofan alternative fuel byreason ofan orderor rule of 42 United States Code, §742S;

(iv) use ofan alternative fuel at a steam generating unitto the extentthatthe fuel is generatedfrom municipal solidwaste;

(v) use ofan alternative fuel orraw materialby a stationary

sourcethatthe source was capable ofaccommodating before December 21, 1976 (unless such change wouldbe prohibited under any federally enforceable permit condition established after December 21, 1976) orthe source

## is approvedto use under any permit issuedunder regulations approved underthis chapter;

(vi) an increase inthe hours ofoperation or inthe production rate (unless the change is prohibitedunder any federally enforceable permit conditionthatwas established after December 21,1976);

(vii) any change in ownership at a stationary source;

(viii) any change in emissions ofa pollutantat a site that

occurs under an existing plant-wide applicability limit;

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(ix) 

## the installation, operation, cessation, orremoval ofa temporary clean coal technology demonstration project, providedthatthe project complies with the state implementation plan and otherrequirements necessary to attain and maintainthe national ambient air quality standard during the project and after itis terminated;

(x) for prevention ofsignificantdeterioration review only, the installation or operation ofa permanent clean coal technology demonstration projectthat constitutes re-powering, provided thatthe project does not result in an increase inthe potential to emit ofany regulated pollutant emittedbythe unit. This exemption shall apply on a pollutant-by-pollutantbasis; or

(xi) for prevention ofsignificant deterioration review only, the reactivation ofa clean coal-fired electric utility stearn generating unit.

(19) 

## Necessary preconstruction approvals orpermits--Those permits or approvals required under federal air quality controllaws and regulations andthose air quality control laws and regulations that are part ofthe applicable state implementation plan.

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(20) Net emissions increase--The amountby whichthe sum ofthe following exceeds zero: the project emissions increase plus any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases. Baseline actual emissions shallbe usedto determine emissions increases and decreases.

(A) An 

## increase or decrease in emissions is creditable onlyifthe following conditions are met:

(i) 

## it occurs during the contemporaneous period;

(ii) the executive director has not relied on it in issuing a federal new source review permitfor the source andthat permit is in effectwhenthe increase in emissions from the particular change occurs; and

(iii) inthe case ofprevention ofsignificant deterioration review only, an increase or decrease in emissions ofsulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor sourcebaseline date is creditable onlyifit is requiredto be consideredin calculating the amount ofmaximum allowable increases remaining available.

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(B) An 

## increase in emissions is creditable ifitis the result ofa physical change in, or change in the method ofoperation ofa stationary source only to the extentthat the new level ofemissions exceeds the baseline actual emission rate. Emission increases at facilities under a plant-wide applicability limit are not creditable.

(C) Adecrease in emissions is creditable only to the extentthat all ofthe following conditions are met:

(i) the baseline actual emission rate exceeds the new level of emissions;

(ii) itis enforceable at and afterthe time that actual construction on the particular change begins;

(iii) the executive directorhas not relied on itin issuing a prevention ofsignificant deterioration or a nonattainmentpermit;

(iv) the decrease has approximately the same qualitative significancefor public health and welfare as that attributedto the increase from the particular change; and

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(v) inthe case ofnonattainment applicability analysis only, the state has not relied onthe decrease to demonstrate attainment orreasonable further progress.

(D) An increase that results from a physical change ata source

occurs whenthe emissions unit on which construction occurredbecomes operational andbegins to emit a particularpollutant. Any replacementunitthat requires shakedown becomes operational only after a reasonable shakedownperiod, notto exceed 180 days.

(21) Offsetratio--Forthe purpose ofsatisfyingthe emissions offset reduction requirements of42 United States Code, §7503(a)(1)(A), the emissions offset ratio is the ratio oftotal actual reductions ofemissions to total emissions increases of suchpollutants. The minimum offsetratios are includedinTable I ofthis section under the definition ofmajor modification. In 

## orderfor a reductionto qualify as an offset, it
mustbe certifiedas an emission creditunder Chapter 101, Subchapter H, Division 1 or 4 ofthis title (relating to Emission Credit Banking orTrading; or Discrete Emission Credit Banking andTrading), except as providedfor in §116.170(b) ofthis title (relating to Applicability ofEmission Reductions as Offsets). The reduction must nothave been relied on inthe issuance ofa previous nonattainmentorprevention ofsignificant deteriorationpermit.

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(22) Plant-wide applicability limit--An emission limitation expressed, in
tons peryear, for a pollutant at a major stationary source, thatis enforceable and established in a plant-wide applicability limitpermitunder §116.186 ofthis title (relating
to General and Special Conditions).

(23) Plant-wide applicability limit effective date--The date ofissuance of the plant-wide applicability limit permit. The plant-wide applicability limiteffective date for a plant-wide applicability limit establishedin an existing flexible permitis the date thatthe flexible permitwas issued.

(24) Plant-wide applicability limit major modification--Anyphysical change in, or change inthe method ofoperation ofthe plant-wide applicabilitylimit

source that causes itto emit the plant-wide applicabilitylimitpollutant at a level equal
to or greater than the plant-wide applicabilitylimit.

(25) Plant-wide applicability limitpermit--The new source reviewpermit that establishes the plant-wide applicability limit.

(26) Plant-wide applicability limitpollutant--The pollutantfor which a plant-wide applicabilitylimit is established at a major stationary source.

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(27) Potential to emit--The maximum capacity ofa stationary source to emit a pollutantunderits physical and operational design. Any physical or enforceable operational limitation on the capacity ofthe stationary sourceto emit a pollutant, including air pollution control equipment andrestrictions onhours ofoperation oron the type or amountofmaterial combusted, stored, orprocessed, maybetreated as part ofits design onlyifthe limitation orthe effectitwouldhave on emissions is federally enforceable. Secondaryemissions, as definedin 40 Code ofFederal Regulations §51.165(a)(1)(viii), do notcountin determining the potentialto emitfor a stationary

source.

(28) Project net--The sum ofthe following: the project emissions increase, minus any sourcewide creditable emission decreases proposed atthe sourcebetweenthe date ofapplicationfor the modification andthe date the resultant modificationbegins emitting. Baseline actual emissions shallbe used to determine emissions increases and decreases. Increases and decreases must meetthe creditability criterialistedunder the definition ofnetemissions increase inthis section.

(29) Projected actual emissions--The maximum annual rate, in tons per year, atwhich an existing facility is projectedto emit a federally regulatednew source review pollutantin any rolling 12-monthperiod during the five years following the date the facility resumes regular operation afterthe project, orin anyone ofthe ten years

## Texas Commission on Environmental Quality Page 55 Chapter 116

- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2008-030-116-PR following that date, ifthe projectinvolves increasing the facility's design capacity orits potential to emitthatfederally regulated new source review pollutant. In determining the projected actual emissions, the owner oroperatorofthe major stationary source shall includefugitive emissions to the extent quantifiable and shall consider all relevant information, including, butnotlimitedto, historical operational data, the company's

own representations, the company's expectedbusiness activity andthe company's highestprojections ofbusiness activity, the company's filings with the state orfederal regulatory authorities, andcompliance plans under the approved state implementation plan.

(30) Project emissions increase--The sum ofemissions increases for each modified or affectedfacility determined using the following methods:

(A) for existing facilities, the difference betweenthe projectedactual emissions andthe baseline actual emissions. In calculating any increase in emissions thatresults from the project, that portion ofthe facility's emissions following the project thatthe facility couldhave accommodated during the consecutive 24-month periodused
to establish thebaseline actual emissions andthat are also unrelatedto the particular project, including any increased utilization due to product demand growth may be excludedfrom the project emission increase. The potential to emitfrom the facility

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(B) for newfacilities, the differencebetween the potential to emit from the facility following completion ofthe project andthebaseline actual emissions.

(31) Replacement facility--A facility that satisfies the following criteria:

(A) the facility is a reconstructed unitwithin the meaning of40 Code ofFederal Regulations §60.15(b)(1), orthe facility replaces an existing facility;

(B) the facility is identicalto orfunctionally equivalentto the replacedfacility;

(C) the replacement does not alterthebasic design parameters of the process unit;

(D) the replacedfacility is permanently removed from the major stationary source, otherwise permanently disabled, orpermanentlybarred from operationby a permitthat is enforceable. If

## the replaced facility is broughtbackinto operation, it shall constitute a new facility. No creditable emission reductions shall be

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- Control ofAirPollutionby Permits for New Construction orModification Rule Project No. 2oo8-030-116-PR generatedfrom shutting down the existing facility that is replaced. Areplacement facility is considered an existing facility for the purpose ofdetermining federal new

source review applicability.

(32) Secondary emissions--Emissions thatwould occur as a result ofthe construction or operation ofa major stationary source ormajor modification, but do not

comefrom the source or modification itself. Secondary emissions mustbe specific, welldefined, quantifiable, andimpactthe same general area as the stationary source or modificationthat causes the secondary emissions. Secondary emissions include emissions from any off-site supportfacility thatwould notbe constructed orincrease its emissions, except as a result ofthe construction or operation ofthe major stationary

source or major modification. Secondary emissions do notinclude any emissions that

come directly from a mobile source such as emissions from the tail pipe ofa motor vehicle, from a train, orfrom a vessel.

(33) Significantfacility--Afacility that emits orhas the potential to emit a plant-wide applicability limit (PAL) pollutantin an amountthat is equal to orgreater thanthe significantlevel for that PAL pollutant.

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(34) Small facility--A facility that emits orhas the potential to emitthe plant-wide applicabilitylimit (PAL) pollutantin an amountlessthanthe significantlevel forthat PALpollutant.

(35) Stationary source--Anybuilding, structure, facility, orinstallation that emits or may emit any airpollutant subjectto regulation under 42 United States Code, §§7401 et

# seq.

(36) Temporary clean coal technology demonstration project--Aclean coal technology demonstration projectthatis operated for a period offive years orless, and that complies with the state implementation plan and otherrequirements necessaryto attain andmaintainthe national ambientair quality standards duringthe project and after itis terminated.

## Texas Commission on Environmental Quality Page 59 Chapter 116

- Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2oo8-030-116-PR

SUBCHAPTERB: NEW SOURCE REVIEW PERMITS DIVISION 5: NONATTAINMENT REVIEW PERMITS §U6.150



## STATUTORYAUTHORITY The amendment is adoptedunderTexas Water Code, §5.102, concerning General Powers, §5.103, concerning Rules, and §5.105 concerning General Policy, which authorize the commissionto adopt rules as necessary to carry outits power and duties under the Texas Water Code; Texas Health and Safety Code, §382.017, which provides the commission withthe authority to adopt rules consistentwith the policy and purposes ofthe Texas CleanAirAct (TCAA); §382.011, concerning General Powers and Duties, which authorizes the commissionto control the quality ofthe state's air; §382.012, concerning StateAir Control Plan, which authorizes the commissionto prepare and develop a comprehensive planfor the proper control ofthe state's air; and §382.051, concerning Permitting Authority ofthe Commission, which authorizes the commissionto issue permits to construct a newfacility or modify an existing facility that may emit air contaminants, and authorityto adopt rules necessary to comply with changes infederal law or regulations applicable to permits issuedunder the TCAA.

The adopted amendment implements Texas Water Code, §5.103; andTexas Health and Safety Code, §§382.017, 382.012, and 382.051.

## Texas Commission on Environmental Quality Page 60 Chapter 116

- Control ofAir Pollution by Permits for New Construction or Modification Rule Project No. 2008-030-1l6-PR

§116.150. New Major Source or Major Modification in Ozone Nonattainment Areas.

(a) This section applies to all new source review authorizations for new construction or modification offacilities that willbe locatedin any areadesignated as nonattainment forozone under42 United States Code (USC), §§7407 etseq. as ofthe date ofissuance ofthe permit, unless the following apply on the date ofissuance ofthe permit:

(1) 

## the United States Environmental ProtectionAgency (EPA) has made a finding ofattainment;

(2) the EPAhas approvedthe removal ofnonattainment New Source Review requirements from the area;

(3) the EPAhas determinedthat Prevention ofSignificantDeterioration requirements apply inthe area; or

(4) the EPA determines that nonattainment NSR is 

## no longerrequiredfor purposes ofantibacksliding.

## Texas Commission on Environmental Quality Page 61 Chapter 116

- Control ofAir pollution by Permits for New Construction or Modification Rule Project No. 2oo8-030-116-PR

(b) 

## The owner or operator ofa proposednew major stationary source, as defined in §116.12 ofthis title (relating to Nonattainmentand Prevention ofSignificant Deterioration Review Definitions) ofvolatile organic compound (VOC) emissions or nitrogen oxides (NOx) emissions, orthe owner or operator ofan existing stationary

source ofVOC or NOx emissions tlIat will undergo a majormodification, as defined in §116.12 oftlIis title with respectto VOC or NOx, shall meettlIe requirements of subsection (d)(l)

- (4) ofthis section, exceptas providedin subsection (e) oftlIis section. Table I, locatedin the definition ofmajor modification in §116.12 oftlIis title, specifies the various classifications ofnonattainmentalong witlI the associated emission levels tlIat designate a major stationary source and significantlevel for those classifications.

(c) Except as notedin subsection (e) ofthis section regarding NOx, the de minimis thresholdtest (netting) is requiredfor all modifications to existing major

sources ofVOC or NOx, unless atleast one ofthe following conditions are met:

(1) tlIe proposed emissions increases associatedwith a project, witlIout regardto decreases, is less tlIan five tons peryear (tpy) ofthe individual nonattainment pollutantin areas classifiedunder Federal CleanAirAct (FCAA), Title I, Part D, Subpart 2 (42 USC, §7511) classified as Serious or Severe;

## Texas Commission on Environmental Quality Page 62 Chapter n6

- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2oo8-o30-n6-PR
(2) the proposed emissions increases associated with a project, without regardto decreases, is less than 40 tpy ofthe individual nonattainment pollutantin

areas classified under FCAA, Title I, Part D, Subpart 1 (42 USC, §7502) andfor those underFCAA, Title I, Part D, Subpart 2 (42 USC, §75n) classifiedas Marginal or Moderate; or

(3) the projectemissions increases are less than the significantlevel stated in Table I locatedin the definition ofmajor modification in §n6.12 ofthis title andwhen coupledwith project actual emissions decreases for the same pollutant, summedas the projectnet, are less than or equal to zero tpy.

(d) In applying the de minimis thresholdtest, ifthe net emissions increases are greaterthan the significantlevels statedinTable I locatedinthe definition ofmajor modification in §n6.12 ofthis title, the following requirements apply.

(1) The proposedfacility shall comply with the lowest achievable emission
rate (LAER) as defined in §n6.12 ofthis title for the nonattainmentpollutants for which the facility is a new major source ormajor modification except as providedin paragraph (3)(B) ofthis subsection andexceptfor existing major stationary sources thathave a potential to emit (PTE) ofless than 100 tpy ofthe applicable nonattainmentpollutant. For these sources, best available control technology (BACT) canbe substitutedfor

## Texas Commission on Environmental Quality Page 63 Chapter 116

- Control ofAir Pollutionby Permits for New Construction orModification Rule Project No. 2008-030-1l6-PR

LAER. LAER shall otherwisebe appliedto each newfacility andto each existing facility
atwhichthe net emissions increase will occur as a result ofa physical change or change in method ofoperation ofthe unit.

(2) All major stationary sources owned or operatedbythe applicant (orby any person controlling, controlledby, or under common control withthe applicant) in the state mustbe in compliance oron a schedule for compliancewith all applicable state and federal emission limitations and standards.

(3) At the timethe new or modifiedfacility or facilities commence operation, the emissions increases from the new or modified facility orfacilities mustbe offset. The proposed facility shall use the offset ratio for the appropriate nonattainment classification as defined in §1l6.l2 ofthis title and shown inTable Ilocated inthe definition ofmajor modification in §116.l2 ofthis title. Internal offsets that are generated atthe source andthat otherwise meet all creditabilitycriteria canbe applied

as follows.

(A) Major stationary sources locatedin a serious or severe ozone nonattainment area with a PTE ofless than 100 tpy ofan applicable nonattainment pollutant are not requiredto undergo nonattainment new source review underthis

## Texas Commission on Environmental Quality Page 64 Chapter 116

- Control ofAir Pollution by Permits for New Construction orModification Rule Project No. 2oo8-o30-116-PR
section, ifthe project increases are offsetwith internal offsets at a ratio ofatleast 1.3 to
1.



## (B) Major stationary sources locatedin a serious or severe ozone nonattainment areawith a PTE ofgreaterthan or equalto 100tpy ofan applicable nonattainmentpollutant can substitute federal BACT (as identified in §116.160(c)(1)(A) ofthis title (relating to Prevention ofSignificantDeterioration Requirements) for LAER, ifthe projectincreases are offsetwitll internal offsets at a ratio ofatleast 1.3 to 1. Internal offsets usedinthis mannercan also be appliedto satisfytlle offsetrequirement.

(4) In accordance witll the FCAA, the permit application must contain an analysis ofalternative sites, sizes, production processes, andcontrol techniques fortlle proposedsource. The analysis must demonstrateiliatthebenefits ofthe proposed location and source configuration significantly outweighthe environmental and social
costs oftllatlocation.

(e) For sources located intlle EI Paso ozone nonattainmentarea as definedin 40 Code ofFederal Regulations, Part 81, the requirements ofthis section do notapply to NOx emissions.

### LalJ<"""'C8sl&nuela, CIIioI

### CIoIl< 

## ORDERADOPTING

## AMENDED

## Ruul~issionanEnvh"'dilentalQuallty REVISIONS TO THESTATE IMPLEMENTATION PLAN



## DocketNo. 2oo8-1631-RUL



## On February 9, 2011, 

## the Texas Commission on Environmental Quality (Commission), during apublic meeting, considered adoption ofamended § 101.1 

## of30 

## TAC Chapter 101, 

## General Air 

## Quality Rules, and §§ 116,12 

## and 116.150 

## of 30 

## TAC Chapter 116, 

## Control ofAir Pollution by Permits for New Construction or Modification; and corresponding -revisions to the state implementation plan (SIP). The rulemaking amends definitions in Chapter 101 

## to remove language regarding specific maintenance and nonattainment areas. In addition, Chapter 116 

## is amended to remove language indicating that the one-hour thresholds and offsets are not effective unless the United States Environmental Protection Agency (EPA) promulgates rules, and to add a requirement for continued applicability of nonattainment New Source Review until the EPA approves its removal for areas attaining the ozone national ambient air quality standard. Under Tex. Health & 

## Safety Code Ann. §§ 382.011, 382.012, 

## and 382.023 

## (Vernon 2001), 

## the Commission has the authority to control the quality of the state's air 

## and to issue orders consistent with the policies and purposes of the Texas Clean Air 

## Act, Chapter 382 

## ofthe Tex. Health & 

## Safety Code. The proposed rules were published for commentin theAugust 27, 2010 

## issue ofthe 

## Texas Register (35 

## TexReg 7676). 

## Pursuantto Tex. Health & 

## Safety Code Ann. § 382.017 

## (Vernon 2001), 

## Tex. Gov't Code Chapter 2001 

## (Vernon 2008), 

## and 40 

## Code of Federal Regulations § 51.102, 

## and after proper notice, the Commission conducted a public hearing to consider the amended rules and revisions to the SIP. Propernotice includedprominent advertisementin the areas affected atleast 30 

## days priorto the date ofthehearing. Apublichearing was heldinAustin, Texas on September 20, 2010. 

## The Commission circulated hearing notices of its intended action to the public, including interested persons, the Regional Administrator of the EPA, and all applicable local air pollution control agencies. The public was invited to submit data, views, and recommendations on the proposed amended rules and SIP revisions, either orally or in writing, at the hearing or during the comment period. Prior to the scheduled hearing, copies of the proposed amended rules and SIP revisions were available for public inspection at the Commission's central office and on the Commission's Web site. Data, views, and recommendations of interested persons regarding the proposed amended rules and SIP revisions were submitted to the Commission during the comment period, and were considered by the Commission as reflected in the analysis oftestimony incorporated by reference to this Order. The Commission finds that the analysis oftestimony includes the names ofall interested groups or associations offering comment on the proposed amended rules and SIP revisions and their position concerning the same.

## IT IS THEREFORE ORDERED BY THE COMMISSION that the amended rules and revisions to the SIPjncorporated by reference to this Order are hereby adopted. The Commission further

.**authorizess~'to** 

## make any non-substantive revisions to the rules necessary to comply with 

## Texas

Registerrequirements. The adopted rules and the preamble to the adopted rules and the revisions to the SIP a,re incorporatedby reference in 

## this Order as ifsetforth atlength verbatim in this Order. IT IS FURTHER ORDERED BY THE COMMISSION that on behalf of the Commission, the Chairman should transmit a copy ofthis Order, together with the adopted rules and revisions to the SIP, to the Regional Administrator of EPA as a proposed revision to the Texas SIP pursuant to the Federal CleanAir Act, codified at 42 U.S. CodeAnn. §§ 

## 7401

- 7671q, as amended. This Order constitutes the Order ofthe Commission required by the Administrative Procedure Act, Tex. Gov't Code, § 

## 2001.033 (Vernon 2008). If any portion of this Order is for any reason held to be invalid by a court of competent jurisdiction, the invalidity ofany portion shall notaffect

## the validity ofthe remaining portions.

Issued date: 

# FEB 14 2011
TEXAS COMMISSION ON ENVIRONMENTAL QUALITYeffect at the lime such plans were delivered, issued for delivery, or renewed. Comment: One commenter requested that §21.2401 (3) be revised to more clearly indicate effectiveness and applicability dates of any provisions of Public Law 111-148, the Patient Protection and Affordable Care Act of 2010 applicable to coverage for mental health and substance use disorder benefits, as well as any such federal regulations promulgated pursuant to the provisions of the Act, by stating that such provisions ere applicable to and effective for coverage to group health plans delivered, issued for delivery, or renewed for a plan year beginning on or after the effective date provided in the Act or in such federal regulations. Agency Response: The Department agrees that clarification of the applicability date of the amended sections to coverage issued or renewed on or after such date is helpfu1. Because the Department has changed paragraphs (1) and (2) to indicate a date certain for applicability ofthe amended sections in response to and connection with other comments on §21.2401 relating to clear statement of applicability date, paragraph (3) has been removed. NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTIONS. For: None. Against: None. Neither for nor against, with changes: Texas Association of Health Plans. STATUTORY AUTHORITY. The amendments are adopted under the Insurance Code Chapters 843, 846, 1251 and 1501, and §36.001. Chapter 843 addresses health maintenance organizations. Section 843.151 provides that the Commissioner may adopt reasonable rules as necessary and proper to meet the requirements of federal law and regulations. Chapter 846 relatesto certain mUltiple employerwelfare arrangements. Section 846.005 requires the Commissioner to adopt ruies necessary to meet the minimum requirements of federal law and regulations. Chapter 1251 addresses group and blanket health insurance. Section 1251.008 provides that the Commissioner may adopt rules necessary to administer the chapter. Chapter 1501 implements provisions regarding small and large employers which were necessary to comply with the federal requirements contained in the federal Health Insurance Portability and Accountability.Act of 1996 (HIPAA). Section 1501.010 requires the Commissioner to adopt rules necessary to impiement Chapter 1501, and to meet the minimum requirements of federal law, including regulations, which for small and large employer health pian

. issuers are contained in HIPAA and in regulations adopted by

federal agencies to implement HIPAA. Section 36.001 provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state. 

### §21.2401. Purpose andScope. The purpose ofthis subchapter is to coordinate the requirements of Texas law with federal law requiring parit)· between certain mental health or substance use disorder benefits and medical/surgical benefits. (1) This subchapter applies to health plan issuers providing. as allowed by law, coverage to group health plans for both medical/surgical benefits and mental health Or substance use disorder ben

## 36 TexReg 

## 1294 February 

## 25, 2011 Texas Register efits. which is delivered. issued for delivery. or renewed on or after March I. 20II. (2) Coverageto grouphealth plans delivered, issued for delivery

.. orrenewed priorto March 1,2011 is subjectto the provisions of this subchapter in effect at the time such plans were delivered. Issued for delivery. or renewed. This agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on February 10, 2011. TRD-201100534 Gene C. Jannon General Counsel and ChiefClerk Texas Department of Insurance Effective date: March 2, 2011 Proposal publication date: December 3, 2010 For further information, please call: (512) 463-6327 

# • • • TITLE 30. ENVIRONMENTAL QUALITY 

# PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 101. GENERAL AIR QUALITY RULES SUBCHAPTER A. GENERAL RULES 30 TAC §101.1 The Texas Commission On Environmental Quality (commission, agency, or TCEQ) adopts the amendment to §101.1. The amendment to §101.1 is adopted 

### with changes to the proposed text as published in the August 27, 2010, issue of the 

### Texas Register(35 TexReg 7676) and will be republished. The amendmentto §101.1 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP). Background and Summary of the Factual Basis for the Rule The EPA rules implementing the 1997eight-hour ozone standard did not require regulated entities to continue to use the more stringent major source thresholds and emission offset requirements of the one-hour ozone standard that previously applied to them when implementing New Source Review (NSR) and Title V permitting for the 1997 eight-hour ozone standard. The EPA rule (known as Phase I) was successfUlly challenged in 

### South Coast Air Quality Management District v. EPA (South Coast) 472 F.3d 882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying thatthe vacatur was limited to the issues on which the court granted the petitions for review). The EPA has interpreted the court ruling as restoring NSR applicability thresholds and emission offset requirements under the one-hour ozone standard to prevent backsliding. The 

### South Coastdecision was upheld by the Supreme Court on January 14, 2008. TCEQ is adopting concurrent amendments to 30 TAC Chapter 116, 

### Controi

### 01 Air 

### Pollution by Permits for New Construction or 

### Modification, to make

### clear the applicability of the major source thresholds and emis

### sion offset requirements. Additionally, in order to prevent future confusion over designations and classifications and their related applicability thresholds 

### and emissions offset requirements, TCEQ is making changes to the definitions in §101.1(54), concerning maintenance area, and §101.1(70), conceming nonattainment area. Because mainte

### nance and nonattainment areas and their boundaries are subject to change based oniy on federal actions, this amendment 

### will eliminate references to specific maintenance and nonattainment areas in favor of a more general definition that indicates the federal regulations that define these areas and the federally 

### applicable designations and classifications. In order to ensure that the public has access to up-to-date information regarding 

### the specific descriptions of nonattainment and maintenance areas, the commission regularly posts information regarding the designation process for new National Ambient Air Quality Standard (NAAQS) on the TCEQ public Web site. Staff has previousiy presented this ruie amendment (RUle Project 2008-03Q-116-PR) to the commission for consideration. At the February 25, 2009, commissioner's agenda, the commission remanded the rule project to the executive director's 

### staff in anticipation of additional direction or action by the EPA, 

### because EPA continued to indicate in various federal notices its intent to complete rulemaking regarding NSR anti-backsliding requirements after the South Coast 

### decision. EPA's proposed rule to implement the 1997 eight-hour ozone NAAQS revision 

### on subpart 1 reclassification and anti-backsliding provisions under the former one-hour ozone standard was published in the January 16, 2009, Federal Register, 

### but has not yet been finalized. This ruiemaking removes language regarding the exemptions from nonattainment new source review (NNSR) that were vacated by South Coast. 

### On September 23, 2009, the EPA published notice of the proposed disapproval of past revisions to the Texas NNSR SIP (74 Federal Register 

### 48467) that are related to this rule amendment, and finalized this disapproval on September 15, 2010 (75 Federal Register

### 56424). Addrtionally, on October 20, 2010, EPA published a final rule to approve the redesignation of the Beaumont-Port Arthur (BPA) 1997 eight-hour ozone 

### nonattainment area to attainment, and clarify EPA's previous approval of the EI Paso §110(a)(1) maintenance plan forthe 1997 eight-hour ozone standard (see 75 Federal Register 84675, 

### October 20, 2010). This final rule noted EPA:s new position regarding NSR anti-backsliding and whether one-hour ozone 

### major source thresholds and emission offset requirements continue to apply in an area. EPA noted "after final redesignation to attainment for the 1997 eight-hour ozone standard, EPA does not require the continued appiication of one-hour anti-backsliding nonattainment NSR, if Texas interprets its SIP as applying prevention of significant deterioration (PSD) to BPA in these circumstances" (See 75 Federal Register 64675 

### and 84677, October 20, 2010). The EPA also clarified that, with respect to EI Paso, "EPA has had further opportunity to consider the appiicable statutory and regulatory provisions and the decision in South Coast.... As a resul\, we no longer believe that the Ciean Air Act requires a separate 110(1) analysis to 

### replace one-hour nonattainment NSR with PSD once an area has been redesignated to attainment for the 1997 eight-hour ozone standard, or has an approved 110(a)(1) maintenance pian for that standard. In sum, we believe that the approach to the nonattainment NSRJPSD transition that we are adopting here with respect to BPA shOUld also be extended to EI Paso. Thus, as iong as the Texas NSR SIP is ciear that the PSD SIP requirements apply to an area such as EI Paso, then that is all that is required by EPA" (See 75 Federal Register 84675, 

### 84677, October 20, 2010). The commission appreciates this clear statement from EPA, and agrees that the SIP shOUld be 

### clear on this issue. Therefore, as discussed in this preamble, although the Texas SIP has always appiied PSD in an area 

### upon redesignation, the commission is concurrently adopting changes to Chapter 116 to make clear that PSD applies once an area has been redesignated to attainment for a particular criteria poliutant. The concurrent amendments to Chapter 116 confirm that the BPA area is no longersubject to NNSR. As discussed previously in this preamble, on October 20, 2010, EPA pUblished the redesignation of the BPA area to attainment for the 1997 eight-hour ozone NAAQS, and a determination that the BPA area had attained the one-hour ozone NAAQS. In this action, EPA determined that the BPA area need not be SUbject to NNSR as an anti-backsliding requirement. Thus, under the amendment to §116.150(a)(1), the BPA area is not subject to NNSR for either the one-hour ozone or 1997 eight-hour ozone NAAQS. Additionally, the concurrent amendments to Chapter 116 confirm thatthe Ei Paso area· is no longerSUbjectto NNSR. On January 15, 2009, EPA published rts approval of a maintenance plan for the EI Paso area forthe 1997 eight-hour ozone standard. As discussed previousiy in this preamble, in EPA:s October 20, 2010, action for the BPA area, EPA stated that ''we no ionger believe that the Clean Air Act requires a separate 110(i) anaiysis to replace 1-hour nonattainment NSR with PSD once an area has

...an approved 110(a)(1) maintenance plan for that standard" (see 75 Federal Register

### 84677). Taken together, these statements reflect an EPA determination that NNSR is no longer required for purposes of anti-backsliding for the EI Paso area. Thus, under the amendment to §116.150(a)(4), the EI Paso area is not subject to NNSR for either the one-hour ozone or 1997 eight-hour ozone NAAQS. 

### This is an issue of extreme importance to the commission, the regulated community, and the pUblic, and there should be 

### no room for ambiguity or argument. In an effort to ensure that TCEQ reguiatory requirements regarding the NNSR permitting program meet the requirements of the Federal Clean Air Act (FCAA) and are approvable into the SIP, the commission is adopting an amendment to provide clarity and eliminate any deficiencies that would prevent approval of the rule changes. 

### Section Discussion §101.1, Definitions 

### The commission is amending the definition of maintenance area in §101.1(54). This amendment removes the specific descrip

### tions of maintenance areas within the state in favor of a more general definition that makes clear that these areas are desig

### nated by federal action. Similar1y, the commission is amending the definition of nonattainment areas in §101.1(70) to remove all references to specific nonattainment areas in §101.1(70)(A)

- (G) and retain those parts of the definition that refer to federal reguiations and the Federal Register. 

### These changes help en

### sure that when changes are made to maintenance areas and nonattainment areas as a result of federal action, these rules will not 

### be rendered incorrect. Also, for the one-hour ozone NAAQS, the designations and classifications in 40 Code of Federal RegUlations (CFR) Part 81 were retained by EPA for purposes of anti-backsliding (See 70 Federal Register

### 44470, August 3, 2005). Upon determination by EPA that any requirement



## ADOPTEDRULES February 25, 

## 2011 36 

## TexReg 1295is no longer required for purposes of anti-backsliding, the requirement

### will no longer apply. The commission is also removing the language 'to prevent anti-backsliding" and replacing it with "for the purposes of anti-backsliding" since the intent of the rule is to prevent backsliding and promote anti-backsliding. Any revision to a SIP that could interfere with or does not comply with the FCM and the SIP because it has the effect of making the approved SIP less stlingent may be considered as "backsliding" from those requirements and would not be approvable by the EPA. Additionally, the definition of reportable quantity contains references to §1011 (70) in §1011 (88)(A)(i)(I1I)(-a-), (-c-), (-w-), (-pp-), and (-zz-) that would be incorrect based on the amendments to §101.1(70). The commission is amending §101.1(88) to correct these references. Final Regulatory Impact Analysis The commission invited public comment regarding the draft regulatory impact analysis detennination during the public comment period, but no comments were received. The commission reviewed the rulemaking in light of the regulatory impact analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a major environmental rule as defined in that statute, and in addition, if it did meet the definition, would not be subject to the requirement to prepare a regulatory impact analysis. A major environmental rule means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sectorof the economy, productivity, competition, jobs, the environment, or the public health and safety ofthe state or a sector ofthe state. The specific Intent of the revisions are to add references to federal regulations in certain definitions that are duplicative with federal regulation that the state has no authority to legally change, and to correct references in the definition of reportable quantity. These changes will not adversely affect the economy, a sector or the economy, productiVity, competition, jobs, the environment, orthe public health and safety of the state or a sector of the state in a material way because they are administrative in nature. Additionally, even if the rule met the definition of a major environmental rUle, the rulemaking does not meet any of the four applicability criteria for requiring a regUlatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225, applies only to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically reqUired by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. The adopted rule would implement requirements of the FCM. Under 42 United States Code (USC), §7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and enforce the NAAQS within the state. While 42 USC, §7410 generally does not require specific programs, methods, or emission reductions in order to meet the standard, state SIPs must inclUde specific requirements as specified by 42 USC, §7410. The provisions of the FCM recognize that states are in the best position to determine what programs and controls are necessary or appropriate



## 36 TexReg 1296 

## February 25, 

## 2011 Texas Register in order to meet the NMOS. This flexibility allows states, affected industry, and the public, to collaborate on the best methods for attaining the NMOS for the specific regions in the state. Even though the FCM allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7410. States are not free to ignore the requirements of 42 USC, §7410, and must develop programs to assure that their SIPs provide for implementation, attainment, maintenance, and enforcement of the NMOS within the state. One of the requirements of 42 USC, §7410 is for states to revise their plans as necessary to take account revisions of the NAAQS. The rule revisions will align the state rules with federal requirements thatthe state has no authority to change, since the FCAA reserves all authority concerning designations and classifications for the EPA only, in addition to correcting internal references in the rules The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th LegiSlature, 1997. The intentof SB633 was to require agencies to conduct a regUlatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, 

### federal law, or a delegated federal program, or are adopted solely underthe general powers of the agency. With the understanding that this requirement would seldom apply, the commission prOVided a cost estimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law. Because of the ongoing need to meet federal requirements, the commission routinely proposes and adopts rules incorporating or designed to satisfy specific federal requirements. The legislature is presumed to understand this federal scheme. Ifeach rule proposed by the commission to meet a federal requirement was considered to be a majorenvironmental rule thatexceedsfederal law, then each ofthose rules would require the full regUlatory impact analysis (RIA) contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts ofthe bills it passes, and that presumpnon is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full RIA for rules that are extraordinary in nature. While this rule may have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCM, and in fact creates no additional impacts since the rUle does not exceed the requirement to attain and maintain the NAAQS. For these reasons, this rule falls under the exception in Texas Government Code, §2001.0225(a), because It is required by, and does not exceed, federal law including the approved SIP. In addition, these rules do not exceed any contract between the state and a federal agency. The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision SUbstantially unamended. It is presumed that'when an agency interpretation is in effect atthe time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency's interpretation." (Central Power

### &LightCo. v. Sharp, 919 S.W2d 485, 489 (Tex. App. Austin 1995), writ denIed with per curiam opinion respecting anotherissue, 960 S.W2d 617 (Tex. 1997); Bullock v. Marathon Oil 

### Co., 798 S.W2d 353, 357 (Tex. App. Austin 1990, no writ). Ct. Humble Oil & Refining Co. v. Calvert, 414 S.W2d 172 (Tex. 1967); Dudneyv. State Farm Mut. Auto Ins. Co., 9 S.W3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal Indus/. WaterAuth. v. Trinity Portland CementDiv., 563 S.W2d 916 (Tex. 1978).) The commission's interpretation of the RIA requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rUle challenges based upon APA require

### ments, the legislature clarified that state agencies are required to meet these seetons ofthe APA against the standard of "substantial compliance" (Texas Government Code, §2001.035). The legislature specifically identified Texas Government Code, §2001.0225 as falling under this standard. As discussed in 

### this analysis and elsewhere in this preamble, the commission has SUbstantially complied With the requirements of Texas Government Code, §2001.0225. The rule implements requirements of the FCAA, specifically 42 USC, §7410. The specific intent of the revisions is to add ref

### erences to federal regulations in certain definitions that are duplicative With federal regulation thet the state has no authority 

### to legally change, and to correct an inadvertent omission in the definition of reportabie quantity. The amendment was not developed soleiy under the general powers of the agency, but is authorized by specific seetons of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and the Texas water Code, which are cited in the STATUTORY AUTHORITY section of this preamble, including Texas Health and Safety Code, §§382.011, 382.012, and 382.017. Therefore, this rulemaking action is not subject to the regulatory analysis prOVisions of Texas Government Code, §2001.0225(b). No comments were received on the RIA. Taking Impact Assessment Under Texas Government Code, §2007.002(5), taking means a governmental aelion that affects private real property, in whole or 

### in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or§17 or§19, Article I, Texas Con

### stitution; or agovernmental action that affects an owner's private real property that is the SUbject of the governmental action, in 

### whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would oth

### elWise exist in the absence of the governmental action; and is the producing cause of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the mar1<et vaiue of the property as if the governmental action is not in effect and the mar1<et value ofthe property deter

### mined as ifthe governmental action is in effect. The commission completed a takings impact analysis for the rulemaking action under Texas Government Code, §2007.043. The primary purpose of this ruiemaking action, as discussed eisewhere in this preamble, is to add references to federal regu

### lations in certain definitions that are duplicative with federal regulation that the state has no authority to iegally change, and to 

### correct an inadvertent omission in the definition of reportable quantity. The rule will not create any additional burden on pri

### vate real property. The rule will not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. This rule also will not affect private real property in a manner that restricts or limits an owner's right to the property that wouid otherwise exist in the absence of the govemmentai 

### action. Therefore, the rulemaking will not cause a taking under Texas Government Code, Chapter 2007. Consistency with the Coastal Management Program 

### The commission determined that this rulemaking action relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 etseq.), and commission rules in 30TAC Chapter281, Subchapter S, concerning Consistency with the Texas Coastal Management Plan. As required by §281.45(a)(3) and 31 TAC §505.11 (b)(2), relating to Actions and Rules SUbjectto the CMP, 

### commission rules governing air pollutant emissions must 

### be consistent with the applicable goals and policies of the CMP. The 

### commission reviewed this action for consistency with the CMP goals and policies in accordance with the rUles of the Coastal 

### Coordination Council, and determined that the action is consistent with the applicabie CMP goals and poiicies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). The amendment replaces existing definibons wtth references to federal regulabons that the state has no authority 

### to change and correct an inadvertentomission in the definition of reportable quantity. The CMP policy applicable to this ruiemaking action is the poiicy that commission rules comply wtth federal regulations in 40 CFR, to protect and enhance air quality in the coastai areas (31 TAC §501.32). Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this ruiemaking 

### action is consistent with CMP goals and policies. Effect on Sites SUbject to the Federal Operating Permits Pro

### gram Chapter 101, Subchapter A is an applicable requirement of 30 TAC Chapter 122, Federal Operating Permits Program, in that the definitions in Subchapter A are relevant in defining and understanding other applicable requirements and applicability generally. Owners or operators subject to the federal operating per

### mit program must, consistent with the revision process in Chapter 122, upon the effeetve date ofthe adopted rulemaking, revise their operating permtt to include any new requirements or address applicability reiated to the new Chapter 101 requirements. Public Comment The commission held a public hearing on September 20, 2010, 

### in Austin and no comments were submitted at the hearing. The comment period closed on September 27,2010. The commis

### sion received written comments from the Texas Industry Project (TIP) and Zephyr Environmental Corp. (ZEC). 

### Response to Comments TIP commented that this rulemaking was unnecessary to ensure anti-backsliding for any Texas ozone 

### nonattainment area,



## ADOPTEDRULES February 25, 

## 2011 36 

## TexReg 1297because it would be superseded 

### by a pending EPA rulemaking, and because it would create an undue hardship for businesses. The commission respectfully disagrees with the comments. Due to EPA's inconsistent positions on anti-backsliding requirements and failure to complete rulemaking to fully implement the D.C. Circuit's opinion in South Coast v. EPA, as discussed earlier in this preamble, there has been confusion and concern regarding anti-backsliding requirements, as reflected in other comments received on this rulemaking. This rulemaking is necessary to re

### move prior adopted rule language that conflicted with then-applicable EPA guidance regarding applicability of major source thresholds and emission offset requirements. The commission constantly strives for clarity in its rules, in order for all interested persons to both understand and implement commission rules appropriately under state law. As discussed earlier in this preamble, EPA has issued a final rule redesignating the SPA area as attainment for the 1997 eight-hour ozone standard, and discussing NSR requirements that apply in the SPA area as of October20,2010, (75 

### Federal Register64675). While this final rule provides additional guidance regarding EPA's opinions concerning anti·backsliding requirements, this rule does not have general applicability, and therefore, does not resolve these issues statewide, as assumed by the commenter. Regarding the commenter's concern thatthe rule, ifadopted, would create an undue hardship for business, the commenter provided no information to support either the type or scope of hardship. No changes were made to the rule in response to these comments. Zephyr commented that removal of specific definitions and referencing federal regulations would not accomplish the stated goal of reducing confusion over nonattainment area designations and classifications and their related applicability thresholds and emission offset requirements. The commission appreciates the comments, and notes that the removal ofthe specificdefinitions to reference the applicable federal regulation is only one element ofthe commission's proposed strategy for clarity regarding anti-backsliding requirements. As stated elsewhere in this preamble, the commission is adopting rule changes to both Chapters 101 and 116 to provide clarity regarding the applicability thresholds and emission offset provisions. Zephyr also commented that the current TCEQ Web site postings were inadequate to prevent confusion over nonattainment area designations and classifications, requested that the TCEQ specify in this response to comments additional items related to nonattainment issues thatwould be included On the website, and requested specific items, such as "links to all documents establishing air quality permitting requirements." The commission appreciates the comment, and will consider how to better provide information on these issues to the public. Statutory Authority The amendment is adopted under Texas water Coda, §5.102, concerning General Powers; §5.103, concerning Rules; and §5.105 concerning General Policy, which authorize the commission to adopt rules as necessary to carry out its power and duties underthe Texas Water Code and under Texas Health and Safety Code, §382.017, which prOVides the commission with the authority to adopt rules consistent With the policy and purposes of the Texas Clean Air Act, §382.011, concerning General Powers and Duties, Which authorizes the commission to control the quality of the state's air; and §382.012, concerning State



## 36 TexReg 

## 1298 February 

## 25, 2011 Texas Register Air Control Plan, which authorizes the commission to prepare and develop a comprehensive plan for the proper control of the state's air. The adopted amendment implements Texas Water Code, §5.103; and Texas Health and Safety Code, §382.017 and §382.012. §101.1.**D~finjtiom.** Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules ofthe commission. the tenns used by the commission have the meanings commonly aseribed to them in the field ofair pollution control. In addition to the tenns that are defined by the TCAA. the following tenns. when used in the air quality rules in this title, have the following meanings, unless the context clearly indicates otherwise. (1) Aecount--For those sources required to be pennitted under Chapter 122 ofthis title (relating to Federal Operating Pennits Program), all sources that are aggregated as asite. Forall other sources, any combination ofsources under common ownership or control and located on one Or more contiguous properties, or properties contiguous except for intervening roads, railroads, rights-of-way, waterways. or similar divisions. (2) Acid gas**flare-~A** flare used exelusively for the incineration ofhydrogen sulfide and other aeidic gases derived from natural gas sweetening processes. (3) Agency established facility identification number--For the purposes of Subehapter F ofthis chapter (relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities), a unique alphanumeric code required to be assigned by the owner or operator ofa regulated entity that the emission inventory reporting requirements of§l01.1 0 ofthis title (relating to Emissions Inventory Requirements) are applicable to each facilil)' at that regulated entity. (4) Ambient air--That portion ofthe atmosphere, external to buildings. to which the general public has access. (5) Background--Baekground concentration, the level of air contaminants that cannot be reduced by controlling emissions from man-made sources. It is detennined by measuring levels in non-urban areas. (6) Boiler--Any combustion equipment fired with solid, liquid, and/or gaseous fuel used to produce steam or to heat water. (7) Capture s)'stem-·AlI equipment(including. but not limited to, hoods, ducts, fans, booths, ovens, dryers, etc.) that contains, collects, and transports an air pollutant to a control device. (8) Captured facility--A manufacturing orproduction faciJil)' that generates an industrial solid waste or hazardous waste that is routinely stored. processed. or disposed ofon a shared basis in an integrated waste management unit O\"'Iled, operated by, and located within a contiguous manufacturing complex. (9) Carbon**adsorber~·An** add-on control device that uses acth:ated carbon to adsorb volatile organic compounds from a gas stream. (10) Carbon adsorption s)'stem--A carbon adsorber wlth an inlet and outlet for exhaust gases and a system to regenerate the saturated adsorbent. (11) Coating--A material applied onto or impregnated into a substrate for protective. decorative. Orfunctional purposes. Such materials include, but are not limited to, paints. varnishes, sealants, adhesi

....'es, thinners, diluents. inks. maskants. and temporal')' protective coatings.(12) Cold solven1 eleaning--A batch process that uses liquid solvent to remove soils from the surfaces ofparts or to 

### dry the parts by spraying, brushing, flushing, anellor immersion while maintaining the solvent below its boiling point. Wipc cleaning (hand cleaning) is not included in this definition. (13) Combustion unit--Any boiler plant, furnace, incinerator, flare, engine, orotherdevice or system used to oxidize solid. liquid, or gaseous fuels, bur excluding motors and engines used in propelling land. water, and air vehicles. (14) Combustion turbine--Any gas turbine system that is gas anellor liquid fuel fired with or without power augmentation. This unit is either attached to afoundation or is portable equipmentoperated at a specific minor or major source for more than 90 days in any 12- month period. Two or more gas turbines powering one shaft will be treated as one unit. (15) Commercial hazardous waste management faeility--Any hazardous waste management facility that accepts hazardous waste or polychlorinated biphenyl compounds for a charge, except a captured facility that disposes only waste generated on-site or a facility that accepts waste only from other facilities owned or effectively controlIed by the same person. (16) Commercial incinerator--An incinerator used to dispose ofwaste material from retail and wholesale trade establishments. (17) Commercial medical waste incinerator--A facility that accepts for incineration medical waste generated outside the property boundaries ofthe facility. (18) Component--A piece ofequipment, including, but not limited to, pumps, valves, compressors, and pressure reliefvalves that has the potential to leak volatile organic compounds. (19) Condensate--Liquids that result from the cooling anellor pressure changes ofproduced natural gas. Once these liquids are processed at gas plants or refineries or in any other manner, they are no longer considered condensates. (20) Construction-demolition waste--Waste resulting from construction or demolition projects. (21) Control system or control device--Any part, chemical, machine, equipment, contrivance, or combination ofsame, used to destroy, eliminate, reduce, or control the emission ofair contaminants to the atmosphere. (22) Conveyorized degreasing-A solvent cleaning process that uses an automated parts handling system, typically a conveyor, to automatically provide a continuous supply ofparts to be cleaned or dried using either cold solvent or vaporized solvent. A conveyorized degreasing process is fully enclosed except for the conveyor inlet and exit portals. (23) Criteria pollutant or standard--Any pollutant for which there is anational ambient air quality standard established under 40 Code ofFederal Regulations Part 50. (24) Custod)' transfer--The transfer ofproduced crude oil anellorcondensate, afterprocessing anellortreating inthe producing operations, from storage tanks or automatic transfer facilities to pipelines or any other forms oftransportation. (25) De minimis impact--A change in ground level concentmtion ofan air contaminant as a result ofthe operation ofany new major stationary source or ofthe operation ofany existing source that bas undergone a major modificationthat does not exceed the following specified amounts. Figure: 30 TAC §101.1(25) (No change.) (26) Domestic wastes--The garbage and rubbish normally resulting from the functions oflife within a residence. (27) Emissionsbanking--A system forrecording emissions reducti.on credits so they may be used or transferred for future use. (28) Emissions event--Any upset event or unscheduled maintenance, startup, or shutdoVlIl activity, from a common cause that results in unauthorized emissions of air contaminants from one or more emissions points at a regulated entity. (29) Emissions reduction credit--Any stationary source emissions reduction that has been banked in accordancc with Chapter 101, Subchapter H, Division I ofthis title (relating to Emission Credit Banking and Trading). (30) Emissions reduction credit certificate--The certificate issued by the executive director that indicates the amount ofqualified reduction available for use as offsets and the length oftime the reduction is eligible for use. (31) Emissions unit--Any part ofa stationElr)' source that emits, or would have the potential to emit, any pollutant subject to regulation under the Federal Clean Air Act. (32) Excess opacity event--When an opacity reading is equal to or cxceeds 15 additional percentage points above an applica· ble opacity limit, averaged over a six-minute period. (33) Exempt solvent--Those carbon compounds or mixtures ofcarbon compounds used as solvents that have been excluded from the definition ofvolatile organic compound. (34) External floating roof--A cover orroofin an open top tank that rests upon or is floated upon the liquid being contained and is equipped with a single or double seal to close the space between the roofedge and tank shell. A double seal consists oftwo complete and separate closure seals, one above the other, containing an enclosed space between them. (35) Federal motor vehicle regulation--Controi ofAir Pollution from Motor Vehicles and Motor Vehicle Engines, 40 Code of Federal Regulations Part 85. (36) Federally enforceable--Alllimitations and conditions that are enforceable by the United States Environmental Protection Agency administrator, including those requirements developed under 40 Code ofFederal Regulations (CFR) Parts 60 and**61~** requirements within any applicable state implementation plan (SIP); and any pennit requirements established under 40 CFR §52.21 or under regulations approved under 40 CFR Part 51, SUbpart I, including operating permits issued under the approved program that is incorporated into the SIP and that expressly requires adherence to any permit issued under such program. (37) Flare--An open combustion unit (i.e., lacking an enclosed combustion chamber) whose combustion 

### air is provided b)' lIDcontrolled ambient air around the flame, and that is used as a control device. A flare may be equipped with a radiant heat shield (with or without a refractoT)' lining), but is not equipped with a flame air control damping system to control the air!fuel mixture. In addition, aflare may also use auxiliElr)" fuel. The combustion flame may be elevated or at ground level. A vapor combustor, as defined in this section, is not considered a flare. (38) Fuel oil--Any oil meeting the American Society for Testing and Materials (ASTM) specifications for fuel oil in ASTM D396-01, Standard Specifications for Fuel Oils, revised 2001. This includes fuel oli grades I, 1 (Low Sulfur), 2, 2 (Low Sulfur), 4 (Light), 4, 5 (Light), 5 (Heavy), and 6.



## ADOPTEDRULES February 25, 

## 2011 36 

## TexReg 1299(39) Fugitive emission--Any gaseous or particulate contaminant entering the atmosphere that could not reasonably pass through a stack, chimney, vent, or other functional!) equivalent opening designed to direct or control its flow. (40)**Garbage-~Solid** waste consisting ofputrescible animal and vegetable waste materials resulting from the handling. preparation. cooking. and consumption offood. including waste materials from markets. storage facilities, and handling and sale ofproduce and other food products. (41)**Gasoline~-Any** petroleum distillate having a Reid vaporpressure offourpounds persquare inch (27.6 kilopascals) orgreater that is produced for use as a motorfuel. and is commonly called gasoline. (42) Hazardous wastes--Any solid waste identified orlisted as ahazardous waste by the administratorofthe United StatesEnvironmental Protection Agency underthe federal Solid Waste Disposal Act, as amended by Resource Consenration and Recovery" Act, 42 United States Code, §§6901 etseq., as amended. (43) Heatset (used inoffset lithographic**printing)~~An)'** operation where heat is requiredto evaporate ink oil from the printing ink. Hot air dryers are used to deliver the heat. (44)**High~bak.e coatings~~Coatings**  designed to cure al temperatures above 194 degrees Fahrenheit. (45) High-volume low-pressure spray guns--Equipment used to apply coatings by means ofa spray gun that operates between 0.1 and 10.0 pounds per square inch gauge air pressure measured at the air cap. (46) Incinerator--An enclosed eombustion apparatus and attachments that is used in the process ofburning wastes for the primar)" purpose ofredueing its volume and weight by removing the combustibles ofthe waste and is equipped with a flue for conducting products of combustion to the atmosphere. Any combustion device that bums] 0% or more ofsolid waste on a total British thennal unit (Btu) heat input basis averaged over any**one~hour** period is considered to be an incinerator. A combustion device without instrumentation or methodology to detennine hourly flow rates ofsolid waste and burning 1.0% or more ofsolid waste on a total Btu heat input basis averaged annually is also considered to be an incinerator. An**open~trench** type (with closed ends) combustion Wlit may be considered an incinerator when approved by the executive direetor. Devices burning untreated wood scraps, waste wood, or sludge from the treatment ofwastewater from the process mills as a primary fuel for heat recovery' are not**in~** cluded under this definition. Combustion devices pennitted underthis title as combustion devices other than incinerators will not be considered incinerators for applieation ofan)" -rule within this title provided they are installed and operated in eompliance with the condition ofall applicable pennits. (47) Industrial**boiler~-A** boiler located on the site ofa**fa~** cility engaged in a manufacturing process where substances are**trans~** fonned into new produets, including the component parts ofproducts, by mechanical or chemical processes. (48) Industrial**furnace~~Cement** kilns; lime kilns;**aggre~** gate kilns; phosphate kilns: coke ovens; blast furnaces; smelting, melting. or refining furnaces, including pyrometallurgical devices such as cupolas, reverberator furnaces, sintering machines, roasters, or foundry furnaces; titanium dioxide ehloride process oxidation reactors: methane refonning furnaces; pulping recovery furnaces; combustion devices used in the recovel)' ofsulfur values from spent sulfuric acid; and other devices the commission may list.



## 36 TexReg 1300 February 25, 

## 2011 Texas Register (49) Industrial solid waste--Solid waste resulting from. or incidental to. any process ofindustry or manufacturing, or mining or agricultural operations. classified as follows. (A) Class 1 industrial solidwaste orClass 1 waste is an) industrial solid waste designated as Class I by the exeeutive director as any industrial solid waste or mixture ofindustrial solid wastes that because ofits concentration or physical or chemical characteristics is toxic, corrosive, flammable. a strong sensitizer or irritant, a generator of sudden pressure by decomposition, heat, or other means, and may pose a substantial present or potential danger to human health or the environment when improperly processed, stored, transported, or olbef\\,ise managed, including hazardous industrial waste, as defined in §335.1 and §335.505 ofthis title (relating to Definitions and Class] Waste Determination). (B) Class 2 industrial solid waste is any individual solid waste orcombinationofindustrial solidwastes that eannotbe described as Class 1 or Class 3, as defined in §335.506 ofthis title (relating to Class 2 Waste Determination). (C) Class 3 industrial solid waste is any inert and essentially insoluble industrial solid waste, including materials such as rock. brick, glass. dirt, and certain plastics and rubber. etc., that are not readily decomposable as defined in §335.507 ofthis title (relating to Class 3 Waste Determination). (50) Internal floating**co\'er~-A** cover or floating roof in a fixed rooftank that rests upon or is floated upon the liquid being**con~** tained, and is equipped with a closure seal or seals to close the space between the cover edge and tank shell. (51)**Leak.~·A** volatile organic compound concentration greater than ]0.000 parts per million by volume or the amount**speci~** fied by applieable rule, whichever is lower: or the dripping Or exuding ofprocess fluid based on sight, smell, or sound. (52) Liquid**fuel~~A** liquid combustible mixture, not derived from hazardous waste, with a heating value of at least 5,000 British thermal Wlits per pound. (53)**Liquid~mounted seal~~A**  primary seal mounted in continuous contact with the liquid between the tank wall and the floating roofaround the circumference ofthe tank. (54) Maintenance**area~~A** geographic region of the state previous!)' designated nonattainment under the Federal Clean Air Act Amendments of1990 and SUbsequently redesignatedto attaimnent subjeetto the requirement to develop a maintenanee plan under 42 United States Code. §7505a as deseribed in 40 Code ofFederal Regulations Part 8land in pertinent Federal Registernotices. (55) Maintenance**plan~~A** revision to the applicable state implementation plan, meeting the requirements of 42 United States Code, §7505a. (56) Marine**\'essel~~Any** watereraft used, or capable**ofbe~** ing used, as a means oftransportation on water, and that is constructed or adapted to earry, or that carries, oil. gasoline, or other volatile**or~** ganic liquid in bulk as a cargo or cargo residue. (57) Mechanical shoe**seal~~A** metal sheetthat is held**verti~** cally against the storage tank wall by springs or weighted levers and is connected by braces to thefloating roof. Aflexible coatedfabric (envelope) spans the annular spaee between the metal sheet and the floating roof. (58) Medical**waste~~Waste** materials identified by the**De~** partmentofState Health Services as "specialwaste from health**care~re~**lated facilities" and those waste materials commingled and discarded with special waste from health**care~related** facilities. (59) Metropolitan Planning Organization--That organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive planning process under23 United States Code (USC), §134 and49 USC, §1607. (60) Mobile emissions reduction**credit~-The** credit obtained from an enforceable, pennanent, quantifiable, and surplus (to other federal and state rules) emissions reduction generated by a mobile source as set forth in Chapter 1l4, Subchapter F of this titlc (relating to Vehicle Retirement and Mobile Emission Reduction Credits), and that has been banked in accordance with Subchapter H, Division 1 ofthis chapter. (61) Motor**vehicle-~A self~propelled**  vehicle designed for transporting persons orproperty on a street or highway. (62) Motorvehicle fuel dispensing**faci1ity~~Any** site where gasoline is dispensed to motor vehicle fuel 

### tanks from stationary storage tanks.(63) Municipal solid**waste~~Solid** waste resulting from, or incidental to, municipal, community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes. street cleanings, dead animals. abandoned automobiles, and all other solid waste except industrial solid waste. (64) Munieipal solid waste**facility~~Al1** contiguous land, structures, other appurtenances, and improvements on the land used for processing, storing, or disposing of solid waste. A facility may be publicly or privately owned and may consist ofseveral proeessing, storage, or disposal operational units, e.g., one or more landfills, SUTface impoundments, or combinations ofthem. (65) Municipal solid waste**landfill~~A** discrete area ofland or an excavation that receives household waste and that is not a land applicationunit. surface impoundment, injection well, orwaste pile, as those terms are defined under 40 Code ofFederal Regulations §257.2. A municipal solid waste landfill (MSWLF) unit also may receive other types ofResource Conservation and Recovery Act Subtitle D**waste~** such as commercial solid waste, nonhazardous sludge, conditionally exempt**sman~quantity** generator waste, and industrial solid waste. Such a landfill may be pUblicly or privately owned. An MSWLF unit may be a new MSWLF unit, an existing MSWLF unit, Or a lateral expansion. (66) National ambient air quality**standard~~** Those**stan~** dards established undcr 42 United States Code, §7409, including standards for carbon monoxide, lead, nitrogen dioxide, OZOne,**inhal~** able particulate matter, and sulfur dioxide. (67) Net**ground~level concentration~~**  The concentration of an air contaminant as measured at or beyond the property boundat')· minus the representative concentration flowing onto a property as measured at any point. Where there is no expected influence ofthe air contaminant flowing onto a property from other sources, the net ground level concentration may be detennined by a measurement at orbeyond the property boundary. (68) New**source~~Any** station8l)' source, the construction or modification ofwhich was commenced after March 5,1972. (69) Nitrogen oxides**(NOX)~~The** sum ofthe nitric oxide and nitrogen dioxide in the flue gas or emission point, collectively**ex~** pressed as nitrogen dioxide. (70) Nonattainment**area~~A** defined region within the statc that is designated by thc United States Environmental Protection Agency (EPA) as failing to meet the national ambient air quality standard (NAAQS or standard) for a pollutant for which a standard exists. The EPA will designate the area as nonattainment under the provisions of42 United States Code. §7407(d). For the official list and boundarie:s ofnonattainment areas, see 40 Code ofFederal Regulations (CFR) Part 81 and pertinent 

### Federal Register notices. The designations and classifications for the one-hour ozone national ambient air quality standard in 40 CFR Part 81 were retained for the purpose of**anti~backsliding** and upon determination by the EPA that any requirement is no longerrequired for purposes**ofanti~backslidlng,** then that requirement no longer applies. (71)**Non~reportable** emissions**event~-Any** emissions event that 

### in any 24-hour period does not result in an unauthorized emission from any emissions point equal to or in excess ofthe**re~** portable quantity as defined 

### in this section. (72)**Opacity~~** The degree to which an emission ofair**con~** taminants obstructs the transmission oflight expressed as the percentage oflight obstructed as measured by an optical instrument ortrained observer. (73)**Open~top** vapor**degreasing~-A** batch solvent cleaning process that is open to the air and that uses boiling solvent to create solvent vapor used to clean or dry parts through condensation ofthe hot solvent vapors on the parts. (74) Outdoor**hurning~~Any** fire or**smoke~producing** process that is not conducted in a combustion unit. (75) Particulate**matter~~An)'** material, except uncombined water, thatexists as asolid orliquid inthe atmosphere orin agas stream at standard conditions. (76) Particulate matter**emissions-~AIl** finely·divided solid or liquid material, otherthan uncombined water, emittedto the ambient air as measured by United States Environmental Protection Agency Reference Method 5, as specified at 40 Code ofFederal Regulations (CFR) Part 60, Appendix A, modified to include particulate caught by an impinger train; hy an equivalent or alternative method, as specified at 40 CFR Part 51; or by a test method specified in an approved state implementation plan. (77) Petroleum**refinery~~Any** facility engaged in**produc~** ing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants, or otherproducts through distillation ofcrude oil, or through the redistillation, cracking, extraction. reforming, or otherprocessing ofunfinished petroleum derivatives. (78) PM1o-Particu]ate matter with an aerodynamic**diame~** ter less than or equal to a nominal ten micrometers as measured by a reference method basedon 40 Code ofFederal Regulations (CFR) Part 50, Appendix J, and designated in accordance with 40 CFR Part 53, or by an equivalent method designated with that Part 53.. (79) PM,.**emissions~~Finely~divided** solid Or liquid**mate~** rial with an aerodynamic diameter less than or equal to a nominal ten micrometers emitted to the ambient air as measured by an applicable reference method Or an equivalent or alternative method specified in 40 Code ofFederal Regulations Part 5], or by a test method specified in an approved state implementation plan: (80) Polychlorinated biphenyl**compound~-A** compound subject to 40 Code ofFederal Regulations Part 761. (81) Process or**processes~~Any** action, operation, or**treat~** ment cmbracing chemical, commercial, industrial, or manufacturing factors such as combustion units, kilns, stills. dryers, roasters, and equipmentusedin connection therewith, andallothermethods orforms



## ADOPTED RULES February 25, 

## 2011 36 

## TexReg 1301(-h-) chlorofluOTomethane (HCFC-31) (-i-) chloropentafluoroethane (CFC-115) (-g-) l-chloro-l-fluOToethane (HCFC-15

### Ja)

-

(-u-) difluoromethane (HFC-32)

- 5,000

(HFCl,l,I,3,3-pentafluorobutane pentafluoroethane (HFC-125)

- 5,000 earbon monoxide

- 5,000 pounds: ]-chloro-I.I-difluoroethane (HCFCehlorodifluoromethane (HCFC-22)

-

(-ij-) 1,1,2,2,3-pentafluoropropane (HFC245ca)

- 5.000 pounds; pounds; (-hh-) 365mfc) • 5.000 pounds; (-li-) (-y-) 1,1,1 ,2,3,3,3-heptafluoropropane (HFC-227ea)

- 5,000 pounds; (-z-) 1,1,I,3,3,3-hexafluompropane (HFC236fa)

- 5.000 pounds; (·aa-) 1,1, 1,2,3,3-hexafluoropropanc (HFC-236ea)

- 5,000 pounds: (-bb-) hexanes (any isomcr)

- 5,000 pounds; (-cc-) isopropyl alcohol- 5,000 pounds; (-dd-) mineral spirits

- 5,000 pounds; (-ee-) octanes (any isomer)· 5,000 pounds; (-tT-) oxides of nitrogen

- 200 pounds in ozone; nonattainment ozonc maintenance, early action compact areas, Nueces County. and San Patricio County, and 5.000 pounds in all other areas ofthe state, which should be used instead ofthe RQs for nitrogen oxide and nitrogen dioxide provided in 40 CFR Part 302, Table 302.4. the column "final RQ"; (-gg-) pentachlorofluoroethane (CFR-Ill)

- pounds; (-v-) ethanol- 5,000 pounds; (-w-) ethylene

- 5,000 pounds., except in the HGB and BPA ozone nonattainment areas as defined in paragraph (70) ofthis section. where the RQ must be ]00 pounds: (-x-) ethylftuoride (HFC-161) 5,000 pounds:

5,000 pounds; pounds; (-j-) 2-chloro-] ,I, 1,2-tetraftuoroethane (HCFC-124)

- 5.000 pounds; (-k-) ]-chloro-] .1,2,2 tetrafluoroethane (HCFC-124a)

- 5,000 pounds; (-1-) 1.I,l,2,3A,4,5,5.5-decafluOTopentane (HFC 43·IOmee)

- 5,000 pounds; (-m-) decanes (any isomer)

- 5.000 pounds; (-n-) I,I-dichlom-l-fluoroethane (HCFC141b)

- 5,000 pounds; (-0-) 3,3-dichloro-l, 1,2,2-pentafluoro. propane (HCFC-225ca)

- 5.000 pounds; (-p-) 1,3-dichloro-Ll ,2,2,3-pentafluompropane (HCFC-225cb)

- 5,000 pounds; (-q-) ] ,2-dichloro-l.1 ,2,2-tetrafluoroethane (CFR-1l4)

- 5.000 pounds; (-r-) 1.1-dichlorotetrafluoroethane (CFC114a)

- 5.000 pounds; (-s-) ]**,2-dichloro~** 1.1,2-trifluoroethane (HCFC-123a)

- 5,000 pounds; (+) I,I-difluoroethane (HFC-152a)

- 5,000 5,000 pounds: 5,000 pounds; 5.000 pounds; 5.000 pounds: (-d-) (-e-) 142b)

- 5.000 pounds: (-f-)

(88) Reportable quantity (RQ)--Is as follows: (A) for individual air contaminant compounds and specifically listed mixtures by name or Chemical Abstracts Service (CAS) number. either: (I) the lowest ofthe quantities: (/) listed in 40 Code of Federal Rcgulations (CFR) Part 302. Table 302.4. the column "final RQ"; (ll) listed in 40 CFR Part 355, Appendix A, the column "Reportable Quantity"; or (Ill) listcd as follows: (-a-) acetaldehyde

- 1,000 pounds, exccpt in the Houston-GalveslOn-Brazoria (HGB) and Beaumont-Port Arthur (BPA) ozone nonattainment areas as defined in paragraph (70) ofthis section, where the RQ mus! be 100 pounds: (·b-) butanes (any isomer)

- 5,000 pounds; (-c-) butenes (any isomer, except 1,3-butadiene)

- 5,000 pounds, except in the HGB and BPA ozone nonattainment areas as dcfined in paragraph (70) ofthis section, where the RQ must be 100 pounds: ofmanufacturing or proeessing that may emit smoke. particulate matter, gaseous matter. or visible emissions. (82) Proeess weight per hour--"Process weight" is the total weight ofall materials introduced or recirculated into any specific proeess that may cause any discharge ofair contaminants into the atmosphere. Solid fuels charged into thc process will be considered as part ofthe process weight, but liquid and gaseous fuels and combustion air 

### will not. The "process weight per hour" will be derived by dividing the total process weight by the number ofhours in one complete operation from the beginning ofany given process to the completion thereof. excluding any time during that the equipment used to conduct the process is idle. For continuous operation, the "process weight per hour" will be derived by dividing the total process weight for a24-hour period by 24. (83) Property--All land under eommon control or ownership eoupled with all improvements on such land, and all fixed or movable**o~jects** on such land, or any vessel on the waters ofthis state. (84) Reasonable further progress--Annual incremental reductions in emissions ofthe applicable air contaminant that are sufficient to provide for attainment ofthe applicable national ambicnt air quality standard in the designated nonattainment areas by thc date required in the state implementation plan. (85) Regulated entity--All regulated units. facilities. equipment, structures, or sources at one street address or location that are o\.\'I1cd or operated by the same person. The tenn includes any property under common ownership or control identified in a permit or used in conjunction with the regulated activity at the same strect address or location. Owners or operators ofpipelines, gathering**line~** and flowlines under common o\.\'I1ership or control in a particular count)' may be treated as a single regulated entity for purposes ofassessment and regulation ofemissions events. (86) Remote reservoircold solventc1eaning--Any cold solvent cleaning operation in which liquid solvent is pumped to a sink-like work area that drains solvent back into an enclosed container while parts are being cleaned. allowing no solvent to pool in the work area. (87) Reportable emissions event--Any emissions eventthat in any 24-hour pcriod, results in an unauthorized emission from any emissions point equal to or in exeess ofthe reportable quantity as defined in this section.



## 36 TexReg 1302 February 25,2011 Texas Register(-yy-) trifluorometbane (HFC-Z3)

- 5,000 5,000 pounds; pounds; or

100 pounds; 0.02% by weight, opacity that is equal to or exceeds 15 additional**per~** centage points above the applicable limit averaged over a six-minute period. Opacity is the only RQ applicable to boilers and combustion turbines described in this paragraph: or (D) for facilities where air contaminant compounds are measured directly by a continuous emission monitoring system**pro~** viding updated readings at a minimum 15-minute interval an amount, approved by the executive director based on any relevant conditions and a screening model, that would 

### be reported prior to ground level concentrations reaching at any distance beyond the closest rcgulated entity property line: (i) less than**one~ha1f** ofany applicable ambient air standards: and (if) less than two times the conccntration ofapplicable air emission limitations. (89)**Rubbish~~Nonputrescible** solid waste, consisting of both combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, and similar materials.**Non~** combustiblc rubbish includes glass, crockery, tin eans. aluminum cans, metal furniture, and like materials that will not bum at ordinary incinerator temperatures 0,600 degrees Fahrenheit to 1.800 degrees Fahrenheit). (90) Schcduled maintenance, startup, or shutdown**activ~** ity--For activities with unauthorized emissions that are expected to**ex~** ceed a reportable quantity (RQ), a scheduled maintenance, startup, or shutdown activity is an activity that the owner or operator ofthc 

### reg. ulated entity whether performing or otherwise affected by the activity, providcs prior notice and a final report as required by § 101.211 ofthis title (relating to Schedulcd Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements); the notice or final report includes thc information required in §101.211 ofthis title; and the**ac~** tual unauthorized emissions from the activity do not exceed the emissions estimates submittcd in the initial notifieation by more 

### than an RQ. For activities with unauthorized emissions that are not expected to, and do not, exceed an RQ, a scheduled maintenance, startup, or shutdown activity is one that is recorded as required by §101.211 of this title. Expeeted excess opacity events as described in §101.201(e) ofthis title (relating to Emissions Event Reporting and Recordkeeping Requirements) resulting from scheduled maintcnance, startup, or shutdown activities are those that provide priornotice (ifrequired), and are recorded and reported as required by §10 1.211 ofthis title. (91) Siudge--Any solid or serni·solid, or liquid waste generated from a municipal, commercial, or industrial wastewater**treat~** ment plant; water supply treatment plant, exclusive ofthe treatedeffiuent from a wastewater treatment plant; Or air pollution control equipment. (92) Smoke--Small**gas~born** particles resulting from incomplete combustion consisting predominately ofcarbon and other combustible material and present in sufficient quantity to be \'isible, (93) Solid wastc--Garbage, rubbish, refusc, sludge from a wastc water treatmentplant, water supply treatment plant, or airpollution control equipment, and other discarded material, including solid, liquid, semisolid, or containerized gaseous material resulting from in· dustrial, municipal, commercial, mining, and agrieultural operations and from community and institutional aetivities. The tenn does not include: (-tt-) I, I, I,Z-1etrafluoroetbane (HFC-134a)

- 5,000 pounds; 5,000 pounds;

(·zz-) 

### toluene· 1,000 pounds, except in the HOB and BPA ozone nonattainment areas as defined 

### in paragraph (70) ofthis section, where the RQ must be 100 pounds; (ij) 

### if not 

### listed in clause (i) of this subparagraph, (-kk-) I,I,Z,3,3-pentafluoropropane (lIfeZ45ea)

- 5,000 pounds;(-11-) 1,I,I,Z,3-pentafluoropropane (lIfeZ45eb)

- 5,000 pounds;(-mm-) 1,1,1,3,3-pentafluoropropane (HFC-Z45fa)

- 5,000 pounds; (-no-) pentanes (any isomer)

- 5,000pounds; (-00-) propane - 5,000 pounds;**(~pp-)** 

### propylene

- 5,OOOpounds, exceptinthe HOB and BPA ozone nonattainment areas as defined in paragraph (70) ofthis section, where the RQ must 

### be 100 pounds; (Pqq-) 1,1 ,2,2-terachlorodifluoroethane (CFR-llZ)

- 5,000 pounds; (-rr-) 

### 1,1,1.2-tetrachlorodifluoroethane (CFC-IIZa)

- 5,000 pounds; (-,,-) I,I,Z,Z-tetrafluoroetbane (HFC-134)

(B) for mixtures ofair contaminant compounds: (i) where the relative amount ofindividual air contaminantcompounds is known through common process knowledge or prior engineering analysis or testing, any amount ofan individual air contaminant eompound that equals or exceeds the amount specified in subparagraph (A) oftbis paragrapb; (ij) where the relative amount ofindividual air eontaminant compounds in subparagraph (A)(i) ofthis paragraph is not known, any amount ofthe mixture that equals or exceeds the amount for any single air contaminant compound that is present in the mixture and listed in subparagraph (A)(i) oftbis paragrapb; (iii) where each of the individual air contaminant compounds listed in subparagraph (A)(i) ofthis paragraph are known to be less than 0.02% by weightofthe mixture, and eachofthe otherindividual air contaminant compounds covered by subparagraph (A)(ii) ofthis paragraph are known to be less than 2.0% by weight ofthe**mix~** ture.. any total amount ofthc mixture of air contaminant compounds greater than or equal to 5,000 pounds: or Oll) where natural gas excluding carbon dioxide, water, nitrogen. methane, ethane, noble gases, hydrogen, and oxygen or 

### air emissions from crude oil are known to be in an amount greater than or equal to 5.000 pounds or the associated hydrogen sulfide and mercaptans in a total amount greater 

### than 100 pounds, whichever occurs first: (-uu-) 1,1 ,2-trichloro-1 ,2,2-trifluoroethane (CFR-1l3)

- 5,000 pounds; (-vv-) 1,1,I-trichloro-2,2,2-triIfloroethane (CFC-113a)

- 5,000 pounds; (-ww-) l,l,l-trifluoro-2,2-dichloroethane (IICFC-IZ3)

- 5,000 pounds; (-xx-) I,I,I-trifluoroethane (HFC-143a)

(C) for opacity from boilers and combustionturbines as defined in this section fueled by natural gas, coal, lignite, wood, fuel oil containing hazardous air pollutants at a concentration ofless than (A) solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial dis

## ADOPTEDRULES February 25, 

## 2011 36 

## TexReg 1303charges subjecr to regulation by pennit issued under the Texas Water Code, Chapter 26: (B) soil. dirt, rock, sand, and othernatural orman·made inert solid**material~** used to fill land, ifthe obiect ofthe fill is to make the land suitable for the construction ofsurface improvements: or (e) waste materials that resull from activities associated with the exploration, developmenl, or production of oil or gas, or geothennal resources. and other substance or material regulated by the Railroad Commission of Texas under Natural Resources Code, §91.1 01. unless the waste, substance, ormaterial results from aetivities associated with gasoline plants, natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants and is hazardous waste as defined by the administrator ofthe United States Environ· mental Proteetion Agency underthe federal Solid Waste Disposal Act, as amended by Resource Conservation and Recovery Act, as amended (42 United States Code, §§6901 el seq.). (94) Sour crude··A erude oil that will emit a sourgas when in equilibrium at annospherie pressure. (95) Sour gas--Any natural gas containing more than 1.5 grains ofhydrogen sulfide per 100 eubic feet. or more than 30 grains oftotal sulfur per 100 eubic feet. (96) Source--A pointoforiginofaircontaminants, whether privately or publiely owned or operated. Upon request of a source owner, the executive director shall determine whether multiple pro· cesses emitting air eontaminants from a single point ofemission will be trealed as a single source or as multiple sources. (97) Special waste from health eare-related facilities--A solid waste that ifimproperly treated or handled, may serve to transmit infectious disease(s) and that is comprised ofthe following: animal waste, bulk blood and blood products, microbiologieal waste, pathological waste, and sharps. (98) Standard conditions--A condition at a temperature of 68 degrees Fahrenheit (20 degrees Centigrade) and a pressure of 14.7 pounds per square ineh absolute (101.3 kiloPascals). (99) Standard metropol1tan statistieal area--An area consisting ofa county or one or more contiguous counties that is offieially so designated by the United States Bureau ofthe Budget. (100) Submergedfill pipe--A fill pipe that extends from the top ofa tankto have amaximum clearanee ofsix inches (15.2 centimeters) from the bottom or, when applied to atank that is loaded from the side, that has a diseharge opening entirely submerged when the pipe used to withdraw liquid from the tank can no longer withdraw liquid in nonnal operation. (101) Sulfur eompounds--AII inorganic or organie chemicals having an atom or atoms ofsulfur in their chemical strueture. (J 02) Sulfuric acid mist/sulfurie acid--Emissions ofsulfuric acid mist and sulfuric acid are considered to be the same air contaminant calculated as H,SO. and must include sulfuric acidliquid mist, sulfur trioxide. and sulfuric acid vapor as measured by Test Method 8 in 40 Code ofFederal Regulations Part 60. Appendix A. (103) Sweet crude oil and gas--Those erude petroleum hydrocarbons that are not "sour" as defined in this section. (104) Total suspended particulate--Particulate matter as measured by the method described in 40 Code ofFederal Regulations Part 50. Appendix B.



## 36 TexReg 1304 February 25, 

## 2011 Texas Register (105) Transfer efficiency--The amoUnt of coating solids deposited onto the surface or a part of product divided by the total amount ofcoating solids delivered to the coating application system. (106) True vapor pressure--The absolute aggregate partial vapor pressure. measured in pounds per square inch absolute, of all volatile organic compounds at the temperature ofstorage. handling, or processing. (107) Unauthorized emissions--Emissions ofany air contaminant except carbon dioxide. water, nitrogen, methane, ethane, noble gases, hydrogen, andoxygenthatexeeed any airemission limitation in a pennit, rule, or order ofthe commission or as authorized by Texas Clean Air Aet §382.0518(g). (108) Unplanned maintenanee. startup. or shutdown aetiyity--For actiYities with unauthorized emissions that are expected to exceed a reportable quantity or with excess opacit)·, an unplanned maintenance. startup_ or shutdown actiYit)· is: (A) a startup or shutdown that was not part ofnonnal -or routine facility operations_ is unpredictable as to timing, and is not the t)'pe ofevent nonnally authorized by permit: or (B) a maintenance activit}, that arises from sudden and unforeseeable events beyond the control ofthe operator that requires the immediate corrective action to minimize or avoid an upset or malfunction. (109) Upset event--An unplanned and unavoidable breakdown Orexcursion ofaprocess oroperation that results in unauthorized emissions. A maintenance, startup, or shutdovm actiYit), that was**re~** ported under §101.211 ofthis title (relating to Scheduled Maintenance. Startup, and Shutdown Reporting and Recordkeeping Requirements), but had emissions that exceeded the reported amount by more than a reportable quantity due to an unplanned and unavoidable breakdown or excursion ofa process or operation is an upset event. (110) Utilit)· boiler--A boiler used to produce electric power, steam, or heated or cooled air, or other gases or fluids for sale. (111) Vapor**eombustor-~A** partially enclosed combustion device used to destroy volatile organic compounds by smokeless**com~** bustion without extracting energy in the fonn ofprocess heator steam. The combustion flame may be partially visible, but at no time does the device operate with an uncontrolled flame. Auxiliary fuel and/or a flame aircontrol damping system thatcanoperate atall times to control the air/fuel mixture to the combustor's flame zone, may be required to ensure smokeless combustion during operation. (112) Vapor-mounted seal--A prim8I)' seal mounted so there is an annular space underneath the seal. The annular vapor space is bounded by the bottom ofthe prim8I)' seaL the tank wall, the liquid surface, and the floating roofor eover. (113)**Vent-~Any** duct. stack, chimney, flue, conduit, or other deviee used to conduct air contaminants into the atmosphere. (114) Visible emissions--Particulate Or gaseous matterthat can be detected by the human eye. The radiant energy from an open flame is not considered a visible emission under this definition. (115) Volatile organic compound--As defined in 40 Code of Federal Regulations §51.100(s), except §51.100(s)(2)

- (4), as amended on November 29, 2004 (69 FR 69290). (116) Volatile organic compound (VOC) water separator-- Any tank, box, sump, orother container in which any VOC. floating on or contained in waterentering such tank. box. sump, or other container, is physically separated and remoyed from such water prior to outfall, drainage, or reeovery ofsuch water.

## CHAPTER 116. CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION This agency hereby certifiesthatthe adoption has been reviewed by legal counsel and found to 

### be a valid exercise ofthe agency's legal authority. Filed with the Office of the Secretary Of 

### State on February 11, 2011. TRD-201100544 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: March 3, 2011 Proposal publication date: August 27, 2010 For further information, please call: (512) 239-0177

The Texas Commission on Environmental Quality (commis

### sion, agency, or TCEQ) adopts the amendments to §§116.12, 116.115,116.180,116.182,116.186,116.188, 116.190, 116.192, 116.601, and 116.617; new §116.127; and the repeal of §116.121. The amendments to §§116.115, 116.188, 116.601; new §116.127; and the repeal of §116.121 are adopted without changes 

### as pubiished in the August 27, 2010, issue of the Texas Register 

### (35 TexReg 7676) and will not be republished. Sections 116.12, 116.180, 116.182, 116.186, 116.190, 116.192, and 116.617 are adopted with changes 

### to the proposed text as published in the August 27, 2010, issue of the Texas Register 

### (35 TexReg 7698) and will be repubiished. The amendments to §§116.12, 116.115, 116.180, 116.182, 116.186, 116.188, 116.190, 116.192, and 116.601; and new §116.127 will be submitted to the United States Environmentai Protection Agency (EPA) as revisions to the State Implementation Plan (SIP). The amendment to §116.617 will not be submitted to EPA as a revision to the SIP. BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES On June 10, 2005, the TCEQ submitted the amendment to §116.12 to the EPA as a revision to the New Source Review (NSR) SIP and §116.150 as a revision to the Nonattainment New Source Review (NNSR) SIP, both adopted on May 25, 2005. On February 1, 2006, the TCEQ submitted amendments to §§116.12, 116.121, 116.150, 116.180, 116.182, 116.184, 116.186, 116.188, 116.190, and 116.617 to the EPA as revisions to the NSRSIP; amendmentsto§§101.1, 116.150, and 116.151 as revisions to the NNSR SIP; and the amendment to §116.160 

### as a revision to the Prevention of Significant Deterioration (PSD) SIP, adopted on January 11, 2006. On September 23, 2009, the EPA published notice of the proposed disapproval of these revisions to the Texas SIP (74 Federal Register 

### 48467) and on September 15, 2010, published the final disapproval of the revisions (75 Federal Register58424). 

### This rulemaking and the companion rulemaking (Rule Project No. 2008-030-116-PR) address issues identified by the EPA in its September 15, 2010, final disapproval notice and ensure that TCEQ regulatory requirements regarding the NSR penmit- 

# • • • ting program meetthe requirements ofthe Federal Clean Air Act (FCAA) and are approvabie into the SIP. Specifically, those concern definitions for the Plant-Wide Applicability Limit (PAL) ruies and otherchanges tothe PAL rules

## to meetfederal requirements, induding the condftions for reopening PAL permits_ The rule

### making also amends §116.617, State Pollution Controi Project Standard Penmit (Which is the existing standard penmit ruie), to 

### limit when existing registrations for this standard permit can be amended or reneWed and prOVides the deadline lor final regis

### trations under this specific standard permit. This is intended to facilitate a smooth transition between this section and the new non-rule air quality standard penmit adopted concurrentiy by the 

### commission. The amendments would also remove obsolete references and make non-substantive administrative changes. EPA also disapproved §116.151 as amended in 2006, but did 

### not provide any specific reasons for its disapproval. In its lettertransmitting this rulemaking to EPA, as discussed earlier, the commission is requesting EPA consider §116.151 as amended in 2006 together with these current rule changes as revisions to the SIP. In the September 15, 2010 notice, EPA also proposed to take no action on §§116.400

- 116.406, which were included in the 2006 

### rUlemaking. These sections are permit requirements for compliance with FCAA, §112(g), but they are not necessary elements of the SIP. The rulemaking withdraws from EPA consideration as a revision to the SIP of §§116.400, 116.402, 116.404, and 116.406, as adopted by the commission on January 11, 2006, effective on February 1, 2006. No Changes have been made to the ru Ie text or numbering of these sections. This ruiemaking is at least as stringent as the federal rules being implemented because it includes the applicable elements of the major NSR and PAL penmrt programs. The rulemaking ac

### tion also ensures that the rules will meet the requirements of the FCAA, which requires that the elements of the SIP be en

### forceable, include replicable elements, and ensure compliance and accountability. The specific changes to the PAL rules meet 

### these basic requirements. When EPA adopted the NSR refonm ruie amendments (67 Federal Register 

### 80185, December 31,2002), it expanded its requirement for states' SIP submittais oltheir rules that impiement major NSR to require a demonstration of why both the specific major NSR penmitting program requirements, inciuding applicabie definitions, are at least as stringent as EPA's regUlations, if states do not adopt the specific EPA program. TCEQ's major NSR and its PAL rules do not incorporate the EPA rules by reference but they do inclUde the basic elements of those penmit 

### programs. Therefore, this rulemaking is at least as stringent as the federal rules being implemented. As discussed elsewhere the changes in this rulemaking are made to specifically

### addres~ issues identified by EPA in its September 15, 2010, disapproval 

### notice so that the rules can be approved as revisions to the SIP. The changes make the commission's rules as stringent as EPA's regulations. The definitions of baseline actual emissions and projected actual emissions do not include malfunction emissions, and thus are more stringent than EPA's definitions. In addition, this rulemaking action also ensuresthat the rules will meet the requirements ofthe FCAA, which requires that the elements of the SIP be enforceable, include replicable elements, and en

### sure compliance and accountability. SECTION BY SECTION DISCUSSION



## ADOPTED RULES February 25, 

## 2011 36 

## TexReg 1305

## CHAPTER 116. CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: March 3, 2011 Proposal publication date: August 27,2010 For further infonnation, please call: (512) 239-0177

The Texas Commission on Environmental Quality (commission orTCEQ) is adopting the amendments to §116.12 and §116.150. Sections 116.12 and 116.150 are adopted with changes to the proposed text as published in the August 27,2010, issue of the Texas Register(35 TexReg 7687) and will be republished. The adopted amendments to §116.12 and §116.150 will be submilted to the United States Environmental Protection Agency (EPA) as revisions to the state impiementation plan (SiP). Background and Summary of the Factual Basis for the Adopted Rules On July 18, 1997, the EPA revised the ozone National Ambient Air Quality Standard (NAAQS), promUlgating an ozone standard of0.08 parts per million (ppm) measured over an eight-hour period (the eight-hour ozone NAAQS or standard) (62 Federal Register 38856, July 18, 1997). Different groups and states challenged the final eight-hour ozone NAAQS, and ultimateiy, the United States Supreme Court upheld the EPA's action setting the NAAQS, but found that the EPA had incorrectly implemented the eight-hour ozone NAAQS by classifying areas only under Part D, Subpart 1 of the Federal Clean Air Act (FCAA) Amendments of 1990 and remanding other issues to the District of Columbia (D.C.) Circuit Court of Appeals ('Whitman v. American Trucking Assoc., 121 S.Ct. 903 (2001)). On March 26, 2002, the D.C. Circuit Court of Appeals rejected the other challenges to the eight-hour ozone NAAQS (American Trucking Assoc. v. EPA, 283 F.3d 355 (D. C. Cir. 2002)). The EPA then proposed and adopted implementation rules to implement the eight-hour ozone NAAQS, addressing transition issues from the one-hour ozone NAAQS, the revocation of the one-hour ozone NAAQS, classification of areas forthe eight-hour ozone NAAQS, and the specification of requirements reiating to SIPs. EPA finalized designations for the 1997 eight-hour ozone NAAQS effective on June 15, 2004. FCAA, §107 requires the EPA to designate areas nonaltainment, attainment, or unclassifiable no laterthan one year after the EPA promulgates a new or revised NAAQS. For the ozone NAAQS, FCAA, §181 further requires that each area designated nonattainment shall be classified at the time of its designation, by operation of law, in accordance with Table 1 of that section. FCAA, §181, Table 1 prescribesthe area class (ranging from marginal to extreme), the design value range (measured in ppm and in measurements relating to the one-hour ozone standard), and the primary standard attainment date (ranging from three years to 20 years after November 15, 1990, the effective date of the 1990 Amendments to the FCAA). Other specifics and exceptions are also provided in FCAA, §181. The classification scheme implemented by the United States Congress provided that areas with design values closer to attaining the one-hour ozone standard (ii) written acceptance of the pollution control project has been issued by the executive dircctor. (2) The registration must include the following: (A) a description of process units affected by the project: (B) a description ofthe project (C) identification ofexisting permits Orregistrations affected by the project: (D) quantification and basis of increases and/or decreases associated with the prQjecl. including identification ofaffected existing or proposed emission points. all air contaminants, and hourly and annual emissions rates; (E) a description ofproposed monitoring and recordkeeping that will demonstrate that the project decreases or maintains emission rates as represented: and (F) a description ofhow the standard pennit will be ad¥ ministratively incorporated into the existing pennit(s). (e) Operational requirements. Upon installation ofthe pollution control project. the owner or operator shall comply with the requirements ofparagraphs (1) and (2) ofthis subsection. (1) General duty. The o""ner or operator must operate the pollution control project in a manner consistentwith good industrJ and engineering practices and in such a way as to minimize emissions of collateral pollutants, within the physical configuration and operational standards usually associated with the emissions control device, strategy. or technique. (2) Recordkeeping. The owner or operator must maintain copies on site ofmonitoring orother emission records to prove that the pollution control project is operated consistent with the requirements 

### in paragraph (1) ofthis subsection, and the conditions ofthis standard pennit. (f) Incorporation ofthe standard pennit into the facility authorization. (1) Any new faeilities or changes in method ofcontrol or technique authorizedby this standardpermit insteadofapennitamendment under §116.110 ofthis ritle (relating to Applicability) at a previously pennitted orstandard pennitted facility mustbe incorporated into that facility's pennit when the pennit is amended or renewed. (2) All inereases 

### in previously authorized emissions, new facilities, or changes in method ofcontrol or technique authorized by this standard permit for facilities previously authorized by a pennit by rule must comply with § 106.4 ofthis title (relating to Requirements for Permitting

### by Rule). except §l06.4(a)(I) afthis title, and § 106.8 afthis title (relating to Recordkeeping). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office of the Secretary of Slate On February 11, 2011. TRD-201100543



## 36 TexReg 1324 

## February 25, 

## 2011 Texas Register 

# • • •

### would haile less time to attain the standard, and additional requirements 

### 01 FCAA, Part D, Subpart 2 impose specific, more stringent requirements on areas as the classifications increase from marginal to moderate (and the corresponding design values are further from attainment of the one-hour ozone standard). The EPA rules implementing the 1997 eight-hour ozone standard were adopted in two phases: the Phase I Rule, 69 Federal Register

### 23951, April 30, 2004, addressed a number 

### 01 implementation issues lor the 1997 eight-hour ozone NAAQS, includin9 how areas should be classilied lor the 1997 eight-hour ozone NAAQS (since the classification requirements 

### 01 FCAA, §181 were based on the one-hour ozone standard, the EPA needed to propose and finalize a classification scheme appropriate for the eight-hour ozone standard in accord with FCAA, §181), and which one-hourozone standard requirements should continue to apply under the 1997 eight-hour ozone NAAQS; and the Phase II Rule (70 Federal Regisler71612, 

### November 29,2005), which addressed additional requirements. In EPA's Phase I Rule, one 

### 01 the issues that the EPA considered was the continued applicability 

### 01 control requirements that applied in areas preViously designated nonattainmentforthe one-hour ozone standard. As part 

### 01 the Phase I Rule, the EPA considered several 

### prOVisions of the FCAA that 

### it stated were evidence 

### 01 Congress' intent that certain obligations continue to apply when the EPA revises a NAAQS. The EPA stated that the FCCA, §175A(d) provided that areas could not remove controls that were mandated by the FCAA, Part D, Subpart 2 even after the area attained the NAAQS and was redesignated to attainment. At most, a state could move FCAA, Part D, Subpart 2 controls to the contingency plan provisions 

### 01 the SIP. Another provision that the EPA reviewed and discussed in the Phase I Rule was FCAA, §172(e), which provides that ilthe EPA revises a NAAQS to make it be less s!Tingen!. then the EPA mustpromUlgate regulations applicable to areas that have not attained the original NAAQS to require controls that are no less stringent than controls that applied to areas designated nonattainment priorto such relaxation. The EPA concluded in the Phase I Rule that "if Congress intended areas to remain SUbject to the same level 

### 01 control where a NAAQS was relaxed, they also intended that such controis not be weakened where the NAAQS is made more stringenr' «see 69 Federal Register

### 23972), April 30, 2004). Based on this premise, the EPA adopted rules that provided lor certain requirements to continue to apply to areas that were designated nonattainment for the one-hour ozone standard, 

### depending on how they were designated lor the eight-hour ozone NAAQS. 

### Areas that were designated nonattainment for both the one-hour ozone and eight-hour ozone NAAQS were required to continue to apply certain requirements that applied under the one-hour ozone standard, with specific exceptions (40 Code 

### 01 Federal RegUlations (CFR) §51.905(a)(1)). These requirements included reasonably available control technology (RACT), inspection and maintenance programs (11M), major source applicability cut-ofts lor purposes 

### 01 RACT, rate 

### 01 progress reductions (ROP), stage II vapor recovery, clean fuels fleet programs, clean luel programs lor boilers, transportation**cont~ol** 

### measures, enhanced ambient monitoring requirements, required transportation controls, vehicle miles traveled requirements, and nitrogen oxides requirements (40 CFR §51.900(f). The EPA also prOVided that nonattainment area New Source Review (NSR) reqUirements required by FCAA, §§172(c)(5), 173, and 182 based on the area's previous one-hour ozone NAAQS classification were no longer required elements of an approveble SIP (40 CFR §51.905(e)(4)). The EPA also prOVided that areas would no longer have to meet requirements lor conlonmity, the development 

### 01 maintenance plans, or the penalty lee obligation lor severe areas (40 CFR §51.905). The EPA's Phase I Ruie provided that areas that were nonattainment for the one-hour ozone NAAQS were not required to continue to use the more stringent major source thresholds and emission offset requirements of the one-hour ozone standard when implementing NSR and Title V 

### penmittin9 for the 1997 eight-hour ozone standard. All areas in Texas designated nonattainment lor the 1997 eighthour ozone NAAQS thatwere also designated nonattainmentfor the one-hour ozone NAAQS were classified at a "less stringent" level. Beaumont-Port Arthur (BPA) was classified as "serious" lor the one-hour ozone NAAQS, but was classified as "moderate" lor the 1997 ei9ht-hour ozone NAAQS. Houston-Galveston-Brazoria (HGB) was classified as "severe" forthe one-hour ozone NAAQS and originally classified es "moderate" lor the 1997 eight-hour ozone NAAQS. The EPA has since reclassified the HGB area to "severe" lorthe 1997 eight-hour ozone NAAQS, pursuant to a voluntary reclassification request by the Governor 

### 01 Texas. The Dallas-Fort Worth (DFW) area was classified as "serious" for the one-hour ozone NAAQS, and was classified as "moderate" lor the 1997 eight-hour ozone NAAQS. The EI Paso area was nonattainment for the one-hour ozone NAAQS classified as "serious," but designated attainment lor the 1997 eight-hour ozone NAAQS. So, lor example, a regulated entity in the HGB area triggered nonattainment review if the potential to emit was equal to or greater than 25 tons per year (tpy) under the "severe" Classification lorthe one-hour ozone NAAQS, but only triggered nonattalnment review underthe "moderate" classification forthe eighthour ozone NAAQS ilthe potential to emitwas equal to orgreater than 100 tpy. Under the existing rules, since the HGB area has been reclassified to "severe" lorthe 1997 eight-hour ozone NAAQS, regUlated entities must again utilize the same major source threshold and emission offset requirements that previously applied under the one-hour ozone standard. After designations lor the 1997 eight-hour ozone standard and the final Phase 1 Rule were effective, the commission proceeded with rulemaking to implement the reqUirements lor the 1997 eight-hour ozone standard. The commission updated Chapter 116 to implement the changes from the Phase I Rule regarding the application 

### 01 the 1997 eight-hour ozone standard lor nonattainment NSR On May 25, 2005, the commission adopted changes to Chapter 116, effective June 16, 2005, to prOVide that lor the HGB, DFW, and BPA eight-hour ozone nonattainment areas, .if the EPA promUlgated rules requiring NSR penmit applications In those areas to be evaluated lor nonal1ainment NSR according to that area's one-hour ozone classification then each application would be evaluated in accordance with the area's one-hour- ozone classification. "Evaluation" was specified as including both the threshold lor detenmining il there**w~s** 

### a modification well as the ratio of offsets required, along With any other applicable reqUirement that depended upon an area's.**n~nattainment** 

### classification. In adopting this rule, the commission noted that although the Phase I Rule provided lor the application 

### 01 the eight-hour ozone standard lor nonattainment NSR, the EPA had 9ranted a partiel reconsideration 

### 01 the Phase I Rule specifically regarding that issue and the result of the reconsideration could be a return to the

### ~ne-hour ozone standard lor application 

### 01 nonattainment NSR Because 

### 01 this concern, the commission adopted contingency language in



## ADOPTED RULES February 25, 

## 2011 36 

## TexReg 1325§116.150, and in the table footnotes in the figure located in the definition of major modification In §116.12. This contingency language was adopted to be effeelive in the event that the EPA completed rulemaking to require states to return to a one-hour ozone standard trigger for federal nonattainment NSR evaluations. In this rulemaking, the commission is removing this previously adopted contingency language. The EPA Phase I Rule, and particularly the EPA:s determination that areas designated as nonattainment under the one-hour 

### ozone standard would no longer be subject to one-hour nonattainment 

### NSR requirements, was successfully challenged in 

### South CoastAir Quality Management District v. Envirenmentai Prelection Agency, 472 F.3d 882 (D.C. Cir. 2006) and the rule was partially vacated and remanded to the EPA, as made clear In its revised opinion on June 8, 2007 

### (Soulh CoastAir Qualify Management Dislnct v Envirenmental Prelection Agency, 489 F.3d 1245 

### (D.C. Cir 2007)). The 

### South Coast decision was upheld by the United States Supreme Court on January 14, 2008. In a guidance memo issued on OelOber 3, 2007, the EPA stated that it interpreted the 

### South Coast ruling as restoring NSR applicability thresholds and emission offset requirements pursuant 

### to classifications under the one-hour ozone standard. The EPA also noted in this guidance memo that 

### it intended to conduct rulemaking to conform the NSR regulations to the 

### South Coastdecision. EPA stated that it intended to issue an immediately-effective final rule under the authority of the "Good Cause" pro

### vision of the Federal Administrative Procedure Act to restore the NSR applicability thresholds and emission offsets associ

### ated with designated one-hour ozone nonattainment areas, and would begin a separate notice and comment rulemaking to address longer-term applicability of one-hour ozone NSR requirements, in particUlar, the conditions and mechanisms underwhich those one-hour ozone NSR requirements would cease to apply for NSR purposes. Lastly, the EPA strongly encouraged states to comply with the 

### South Coastdecision as quickly as possible. 

### Because the one-hour ozone standard has been revoked, the EPA is no longer making redesignations or reclassifications under this standard. However, the EPA is making determinations under its Clean Data Policy that areas are currently attaining the one-hour ozone NAAQS. In its proposal to detenmine that the Southern New Jersey portion of the Philadelphia Metro nonattainment area attained the one-hour ozone NAAQS (see 73 

### Federal Regisler42727, July 23, 2008), the EPA discussed the effeel ofthe D.C. Circuit Court ofAppeals' decision vacating a portion of the 1997 eight-hour ozone Phase I Implementation Rule 

### (South CoastAir Qua/ily Management District v. EPA, 472 F3d 882 (2006) and 489 F3d 1295 (2007)). The EPA stated: 'With respeelto the challenges to the anti-backsliding provisions ofthe rule, the Court vacated three previsions that would have allowed States to remove from the SIP or to not adopt three one-hour 

### obligations once the one-hour ozone NAAOS was revoked (including one-hournonattainment NSR requirements). mhe three 

### provisions noted previously.

. were vacated by the Court. As a result, States must continue to meet the obligations for one-hour NSR

.. Currently, EPA is developing two proposed rules to 

### address the Court's vacatur and remand with respect to these three requirements. EPA will address in this proposed rUle how 

### the one-hour obligations that currently continue to apply under EPA's anti-backsliding rule (as interpreted by the Court) apply where the EPA has made a determination that the area attained the one-hour ozone NAAQS by its attainment date." One pos

### sible outcome from the EPA rulemaking on this issue may be



## 36 TexReg 1326 February 25, 2011 Texas Register to direct states that want to remove one-hour ozone nonattainment NSR requirements to submit SIP revisions demonstrating that removing one-hour ozone nonattainment 

### NSR requirements will not interfere with attainment or maintenance of the ozone NAAOS. Because the EPA has not completed any rulemaking to implementthe 

### South Coastdecision regarding NSR anti-backsliding, 

### states must deCide how to implement, and give effect to, the court's decision. Any revision to a SIP that could interfere with or does not comply with the FCAA and the SIP because it has the effeel of making the approved SIP less stringent may be con

### sidered as "backsliding" from those requirements and would not be approvable by the EPA. Given the uncertainty of the future EPA rulemaking, and the finaiity of the 

### South Coastdecision as 

### of January 14, 2008, the commission is removing the previously adopted contingency language, in addition to other changes, to clarify the requirements for nonattainment NSR. Without effective and understandable guidance from the EPA, through rule

### making or otherwise, the commission is left to determine the most reasonable course of action. The 

### South Coast decision, upheld by the United States Supreme Court, makes clear that 

### areas may not ignore one-hour ozone nonattainment 

### NSR requirements. The commission had preViously adopted rules specifying that sources in the BPA, HGB, and DFW nonattainment areas should apply eight-hour ozone nonattainment NSR requirements. The 

### commission is now deleting certain portions of the definition in §116.12(18)(A), concerning major modification and the requirements of §116.150(d). This rulemaking makes clear that permit

### ted facilities in areas that were designated nonattainment for the one-hour ozone standard are SUbject to the major source thresholds and emission offsets of the one-hour ozone standard upon the effective date of this rulemaking unless one of the four exceptions identified in §116.150(a) apply. Staff has previously presented these rule amendments (Rule Projeel2008-030-116-PR) to the commission for consideration. At the February 25, 2009, commissioner's agenda, the commis

### sion remanded the rule project to the executive director's staff in anticipation of additional direction or aelion by the EPA, be

### cause EPA continued to indicate in various federal notices its intent to complete rulemaking regarding NSR anti-backsliding 

### requirements in response to the 

### South Coast decision. EPA's proposed rule to implement the 1997 eight-hour ozone NAAQS 

### revision on subpart 1 reclassification and anti-backsliding provisions under the former one-hour ozone standard was published in the January 16, 2009, 

### Federal Register, but has not yet been 

### finalized. This rulemaking removes language regarding the exemptions from nonattainment new source review (NNSR) that were vacated by 

### South Coast. On September 23, 2009, the EPA published notice of the proposed disapproval of past revisions to the Texas NNSR SIP (74 

### Federal Register48467, September 23, 2009) that are related to these amendments, and finalized this disapproval on September 15, 2010 (74 

### Federal Register56424). EPA disapproved the 

### changes the commission made to several sections of Chapter 116. Two of these changes were the changes that the commission adopted to §116.12 and §116.150 to implement the Phase i rule implementing the 1997 eight-hour oZOne standard, dis

### cussed ear1ier in this preamble, which the commission proposed to change as part of this action. As discussed further in the Section 

### by Section Discussion section of this preamble, the commission is adopting changes to these sections to remove thedisapproved language and to assure that NNSR permitting re

### quirements are clear. Additionally, on October 20, 2010, EPA published a final rule to approve the redesignation of the SPA 1997 eight-hour ozone nonattainment area to attainment, and clarify EPA's previous approval of the EI Paso Section 110(a)(1) maintenance plan for the 1997 eight-hour ozone standard (75 FederalRegister64675, October 20, 2010). This final rule noted EPl':s new position regarding NSR anti-backsliding and Whether one-hour ozone ma

### jor source thresholds and emission offset requirements continue to apply in an area. EPA noted "after final redesignation to attainment for the 1997 eight-hour ozone standard, EPA does not require the continued application of one-hour anti-backsliding nonattainment NSR, if Texas interprets its SIP as applying PSD to BPA in these circumstances (see 75 Federal Register64675 and 64677, October 20,2010). The EPA also clarified that, with respect to EI Paso, "EPA has had further opportunity to consider the applicable statutory and regulatory provisions and the decision in South Coast. As a result, we no longer believe that the Clean Air Act requires a separate Section 110(1) anal

### ysis to replace one-hour nonattainment NSR with prevention of significant deterioration (PSD) once an area has been redesignated to attainment for the 1997 eight-hour ozone standard, or has an approved Section 110(a)(1) maintenance plan for that standard. In sum, we believe thatthe approach to the nonattainment NSRJPSD transition that 

### we are adopting here with respect to BPA shOUld also be extended to EI Paso. Thus, as long as the Texas NSR SIP is clear that the PSD SIP requirements apply to an area such as EI Paso, then that is all that is required by EPA" (see 75 Federal Register64675 and 64677, October 20, 2010). The commission appreciates this clear statement from EPA, and agrees that the SIP should be dear on this issue. Therefore, as discussed in this preamble, although the Texas SIP has always applied PSD in an area upon redesignation, the commission is concurrentiy adopting changesto Chapter 116to make clearthat PSD applies once an area has been redesignated to attainment for a particuiar criteria pollutant. The amendments confirm that the BPA area is no longer suI>- ject to NNSR. As discussed previously in this preamble, on October 20, 2010, EPA published the redesignation of the BPA area to attainment for the 1997 eight-hour ozone NAAOS, and a determination that the BPA area had attained the one-hour ozone NAAOS. In this action, EPA determined thatthe BPA area need not be subjectto NNSR as an anti-backsliding requirement. Thus, under the amendment to §116.150(a)(1), the BPA area is not SUbject to NNSR for either the one-hour ozone or 1997 eight-hourozone NAAOS. Additionally, the amendments confirm that the EI Paso area is no longer SUbject to NNSR. On January 15, 2009, EPA published its approval of a maintenance plan for the EI Paso area forthe 1997 eight-hour ozone standard. As discussed preViously in this preamble, in EPl':s October 20, 2010, action for the BPA area, EPA stated that "we no longer believe that the Ciean Air Act requires a separate 110(1) analysis to replace 1-hournonattainment NSR with PSD once an area has. an approved 110(a)(1) maintenance pian for that standard" (see 75 Federal Register64677). Taken together, these statements reflect an EPA determination that NNSR is no longer required for purposes of anti-backsliding for the EI Paso area. Thus, under the amendment to §116.150(a)(4), the EI Paso area is not subject to NNSR for either the one-hour ozone or 1997 eight-hour ozone NAAQS. This is an issue of extreme importance to the commission, the regulated community and the public, and there should be no room for ambiguity or argument. In an effort to ensure that TCEO regulatory requirements regarding the NNSR permitting program are clear, meet the requirements of the FCAA, and are approvable into the SIP, the commission is adopting the following amendments to eliminate any deficiencies that would prevent approval of the rule changes. Additionally, in order to prevent future confusion over designations and classifications and their related applicability thresholds 

### and emissions offset requirements, the commission is adopting concurrent amendments to the definitions of maintenance area, and nonattainment area In 30 TAC Chapter 101, General Air Quality Rules. 

### Section by Section Discussion §116.12, NonattalnmentandPrevention ofSignificantDeteriora

### tion Review Definitions The commission is changing footnote 1 in Table I, paragraph (18)(A) to remove the reference to the CFR and replace it with a reference the definition of "Nonattainment area" in 30 TAC §101.1. This reference is no longer necessary because the defi

### nition of 

### nonattainment is being updated and also references the appropriate part of the CFR. The commission is also changing the term "major modification level" to "significant level" in footnote 2 in Table 1 in §116.12(18)(A). This will ensure thatthe term used in the footnote matches the heading in the third coiumn of the table and help eliminate any confusion resulting from the use 

### of different terms. The commission is also removing footnotes 6 and 7 from Table 1 in §116.12(18)(A). 

### The commission is making a change from the proposal to remove the second sentence offootnote 3 oITable I in §116.12(18) 

### regarding the EI Paso ozone nonattainment area. As 

### the result ofthe EPA's finai notice regarding the Beaumont/Port Arthur 

### ozone nonattainment area redisignation (see 75 Federal Register64675, October20, 2010), which clarified the EPA's approval 

### of the El Paso area's eight-hour ozone 

### nonattainment maintenance plan, the requirementfor EI Paso in footnote 3 is no longer 

### necessary. Footnote 6 indicates thatthe EPA must complete rulemaking before NSR applications are evaluated according to their one-hour classification. However, the EPA has stated that: the South Coast decision is self-impiementing; did not require rulemakjng by the EPA to be effective; and NSR applications should be 

### evaluated based upon one-hour classifications, ifthey are more stringent than an area's eight-hour classification, and has specifically disapproved footnote 6 (see 75 Federal Register 56424, September 15, 2010). Footnote 7 states that permit applications 

### in areas designated as nonattainment for ozone under FCAA, TItle I, Part D, Subpart 1 (42 United States Code (USC), §7502) will be evaluated as if that area was designated as Marginal. However, Texas does not have any areas currently designated as nonattainment for ozone under FCAA, TItle I, Part D, Subpart 

### 1. The San Antonio area was originally designated nonattainment-<leferred for the 1997 eight-hour ozone NAAOS, but has 

### since been designated attainment. §116.150, New Major Source or Major Modification in Ozone 

### NonattainmentAreas The commission is amending §116.150(a) by removing §116.150(a)(1) and (2). SUbsection (a) would then be amended to apply the requirements of this subsection as of the date of 

### issuance of the permit and to add a requirement for continued applicability of NNSR until the EPA has made a finding of at

## ADOPTEDRULES February 25,2011 36 

## TexReg 1327tainment; the EPA has approved the removal of nonattainment NSR requirements from the area; the EPA has determined that PSD requirements apply in the area; or that nonattainment NSR is no ionger required for the purposes of antibacksliding. The commission Is also removing §116.150(d) from the rule. Subsection (d) contains language similar to that in footnote 6 to Table 1 in §116.12(18)(A). This language Indicates that the EPA must compiete rulemaking before NSR applications 

### are evaluated according to their one-hour classification. However, the EPA has stated that: the South Coast decision is self-implementing; did not require ruiemaking by the EPA to be effective; and NSR applications shouid be evaluated based 

### upon one-hour classifications, ifthey are more stringent than an area's eight-hour classification, and has specifically disapproved §116.150(d) and similar language in footnote 6 (see 75 Federal Register56424, September 15, 2010). Additionally, the netting requirement and exceptions in §116.150(d) are redundant to the same requirement and exceptions in §116.150(c) and thus, 

### unnecessary. The commission is also renumbering the remainder of §116.150 to reflect the removal of §116.150(d) and minor changes to references in §116.150(b) to reflect the renumbering. The commission is changing §116.150(e) to reflect changes in 

### a concurrent rulemaking in Chapter 101. As the result of comments received on the proposal of these amendments the commission is changing: §116.150(a)(1)

- (4) 

### to make clear that the conditions on which these exceptions are based must exist on the date of issuance of the penmit; §116.150(d)(3)(A) to make clear that this exception only applies in a serious or severe ozone nonattainment area; and § 116.150(d)(3)(B) to make clear that this exception only applies 

### in a serious or severe ozone nonattainment area and to specifically state that the best available control technology (BACT) equivalent required by the rule Is federal BACT as Identified in § 116.160(c)(1 )(A). Final Regulatory Impact Analysis Detenmination The commission reviewed the adopted ruiemaking in light of the 

### regulatory impact analysis requirements of Texas Government Code, §2001.0225, and detenmined thatthe ruiemaking does not 

### meet the definition of a major environmental rule as defined in that statute, and in addition, if it did meet the definition, would not be subject to the requirement to prepare a regUlatory impact 

### analysis. A major environmental rule means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adverseiy af

### fect in a material way the economy, a sector ofthe 

### economy, productivity, competition, jobs, the environment, or the pUblic health and safety ofthe state or a sector of the state. The specific intent 

### of the revisions is to remove certain definitions that are duplicative, and to remove previously adopted contingency language that would require EPA final rulemaking before NSR applications 

### are evaluated according to the one-hour classification ofthe area where the faciiity is located. These changes will not adversely affect the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state in a material way since they codify the effect a federal districtcourt ruling that has been upheid by the United States Supreme Court in 

### South Coast, as discussed elsewhere in this preamble. 

### Additionally, even if the rules met the definition of a major environmental rule, the rulemaking 

### does not meet any ofthe four ap

## 36 TexReg 1328 

## February 25, 

## 2011 Texas Register plicabiiity criteria for requiring a regUlatory impact analysis for a 

### major environmental rule, which are listed in Texas Government Code, §2001.0225(a). Texas Government Code, §2001.0225, applies only to a major environmental ruie, the result of which 

### is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement 

### or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule soiely under the general powers of the 

### agency instead of under a specific state law. The adopted rules wouid implement requirements of the FCAA. Under 42 USC, §7410, each state is required to adopt and impiement a SIP containing adequate provisions to implement, attain, maintain, and enforce the NAAQS within the state. While 42 USC, §7410 generaliy does not require specific programs, 

### methods, or emission reductions in order to meet the standard, state SIPs must include specific requirements as specified by 42 USC, §7410. The provisions of the FCAA recognize that states 

### are in the best position to determine what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility aliows states, affected industry, and the publicto collaborate on the best methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7410. States are not free to ignore the requirements of 42 USC, §7410, and must develop programs to assure that 

### their SIPs provide for implementation, attainment, maintenance, and enforcement of the NAAQS within the state. One of the requirements of 42 USC, §7410 is for states to include programs for the regulation ofthe modification and construction of any sta

### tionary source within the area covered by the plan as necessary to assure that the NAAQS are achieved, including a penmit program as required in FCAA, Parts C and D, or NSR. Additionally, once states have developed SIPs, and those plans are approved by the EPA, the FCAA prescribes, in 42 USC, §7502(e) that the EPA, in modifying a NAAQS, shall promuigate rules that apply to all areas that have not attained the previous NAAQS that provide for controls that are no less stringent than the controls that previously applied to the area. The district court in South Coast found that NSR was a "control," and vacated the EPA's Phase I rules that provided thatthe major source thresholds and offset requirements that applied as a result of an area's designation and 

### classification underthe one-hour ozone standard were no longer necessary. Until the EPA completes rulemaking to further interpretthe applicability ofthe NSR penmitting program in the context of 42 USC, §7502(e) and revisions to the ozone NAAQS, state 

### rules that allow NSR review to rely upon designations and classifications for the eight-hour ozone standard in areas previously designated nonattainment 

### for the one-hour ozone standard conflict with the 

### South Coast ruling. 

### The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislature, 1997. The intentof SB 633 was to re

### quire agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as 

### major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, 

### or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this re

### quirement would seldom apply, the commission provided a costestimate for SB 633 that concluded "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications forthe agency due to its limited application." The commission also noted that the 

### number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the crrteria set forth in the bill that exempted rules from 

### the full analysis unless the rule was a major environmental rule that exceeded a federal law. 

### Because ofthe ongoing need to meet federal requirements, the commission routinely proposes and adopts rules incorporating or designed to satisfy specific federal requirements. The legislature is presumed to understand this federal scheme. If each rule 

### proposed 

### by the commission to meet a federal requirement was considered to be a major environmental rule that exceeds 

### federal iaw, then each ofthose rules wouid require the full reguiatory impact analysis (RIA) contemplated by SB 633. This conclusion 

### is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Budget Board (LBB) 

### in 

### its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bilis it passes, and that presump

### tion is based on information provided 

### by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the fuli RIA for ruies that are extraordinary in nature. While the adopted rules may have a broad impact, that impact 

### is no greater than is necessary or appropriate to meet the requirements of the FCM, and in fact creates no additional im

### pacts since the rules do not exceed the requirementto attain and maintain the NMOS. For these reasons, the adopted ruies fall underthe exception in Texas Govemment Code, §2001.0225(a), becausethey are required by, and do not exceed, federal law, including the SIP. In addrtion, these rules do not exceed any contract between the state and a federal agency. 

### The commission has consistently applied this construction to 

### its ruies since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code, but left this provision SUbstantially unamended. It is presumed that "When an agency interpretation is in effect at the time the legislature amends the laws without making sUbstantiai change in the statute, the legislature is deemed to have accepted the agency's interpretation" (Central Power

### & LightCo. v. Sharp, 919 S.W2d 485, 489 (Tex. App. Austin 1995), writ denied with percuriam opinion respecting anotherissue, 960 S.W2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W2d 353, 357 (Tex. App. Austin 1990, no wn't). Cf. Humbte Oil

### & Reffning Co. v. Calvert, 414 S.W2d 172 (Tex. 1967); Dudney v. Stale Farm Mut. Auto Ins. Co., 9 S.W3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal Indust. WaterAuth. v. Tnnily Portland Cement Div., 563 S.W2d 916 (Tex. 1978).) 

### The commission's interpretation of the RIA requirements is also supported by a change made to the Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the iegislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance" (see Texas Govemment Code, §2001.035). The iegislature specifically identified Texas Government Code, §2001.0225 as falling under this standard. As discussed in 

### this analysis and elsewhere in this preamble, the commission has substantially complied with the requirements of Texas Govemment Code, §2001.0225. The adopted rules implement requirements ofthe FCM, specifically to adopt and implement SIPs to attain and maintain the NMOS, inclUding a requirement to adopt and implement permrt programs. The specific intent of the adopted rule revisions 

### is 

### to remove certain definitions that are duplicative, and previously adopted contingency language that would require EPA final rulemaking before NSR applications are evaiuated accord

### ing to the one-hour classification of the area where the facility is located, in order to avoid conflict with the 

### South Coastdecision. These amendments were not developed solely under the general powers of the agency, but are authorized by specific sections of Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act), and the Texas Water Code, which are cited in the Statutory Authority section ofthese rules, inclUding Texas Health and Safety Code, §§382.011, 382.012, and 382.017. Therefore, this rulemaking action is not subject to 

### the regUlatory analysis provisions of Texas Govemment Code, §2001.0225(b). Takings Impact Assessment Under Texas Govemment Code, §2007.002(5), taking means a govemmental action that affects private reai property, in whole or 

### in part or temporarily or pennanently, in a manner1hat requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or§17 or§19, Article I, Texas Con

### stitution; or a governmental action that affects an owner's private real property that is the subject of the governmental action, in 

### whole or in part or temporarily or pennanently, in a manner that restricts or limits the owner's right to the property that would oth

### erwise exist in the absence of the governmental action; and is the producing cause ofa reduction ofat least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if the govemmental action is not in effect and the market value of the property deter

### mined as ifthe governmental action is in effect. The commission completed a takings impact analysis for the adopted rulemaking action under the Texas Govemment Code, §2007.043. The primary purpose of this rulemaking action, as 

### discussed elsewhere in this preamble, is to remove certain definitions that are duplicative, and previously adopted contingency language that would require EPA final rulemaking before NSR applications are evaiuated according to the one-hour classification of the area where the facility is located. The adopted rules will not create any additional burden on private real property. The rules will not affect private real property in 

### a manner that woLild require compensation to private real property owners under the United States Consmution or the Texas Consmution. This rulemaking also will not affect private real 

### property in a mannerthat restricts or limits an owner's righttothe property that would otherwise exist in the absence ofthe govern

### mental action. Therefore, the rulemaking will not cause a taking under Texas Government Code, Chapter 2007. Consistency with the Coastal Management Program 

### The commission detennined that this rulemaking action relates to an action or actions subjectto the Texas Coastai Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Naturai Resources Code, §§33.201 et seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, conceming Consistency with the Texas Coastal Management Program. As reqUired by §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the CMP,



## ADOPTEDRULES February 25, 

## 2011 36 

## TexReg 1329

### commission rules governing air pOllutantemissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and detennined that the action is consistent with the applicable CMP goals and policies. The CMP goal applicable to this rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(1)). These amendments will indirectly benefit the environment because reduced emissions resulting from the more stringent major source thresholds and emission offset requirements of the one-hour ozone standard ensure that there will be fewer adverse impacts to public health and the environment. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with federal regulations in 40 CFR to protect and enhance air quality in the coastal areas (31 TAC §501.14(q». Therefore, in accordance with 31 TAC §505.22(e), the commission affinns that this rulemaking action is consistent with CMP goals and policies. Effect on Sites Subject to the Federal Operating Penmits Program Chapter 116 is an applicable requirement of 30 TAC Chapter 122, Federal Operating Penmits Program. Owners and operators sUbject to the federal operating penmit program must, consistent with the revision process in Chapter 122, upon the effective date of the adopted rulemaking, revise their operating permit to include the new Chapter 116 requirements. Additionally, sources subject to the adopted rules may become subject to the federal operating penmit program.
. PUblic Comment The commission held a pUblic hearing on September 20,2010. The comment period closed on September 27, 2010. The commission received comments from The United States Environmental Protection Agency (EPA), the Texas Industry Project (TIP), and Zephyr Environmental Corp. (ZEG). RESPONSE TO COMMENTS The EPA commented that most of TCEQ's proposed changes meet federal requirements. The EPA also stated that TCEQ makes it clear that NNSR applies based on the attainment status of the area where the source is located on the date of penmit issuance rather than the date of submittal of a complete penmit application. The commission appreciates the EPA's support. The EPA commented that the exceptions to the requirement for NNSR based on 

### nonattainment status on the date of issuance of the penmit in §116.150(a)(1-4) must also exist on the date of issuance of the penmit in order to apply. The commission agrees with this comment and is making changes to §116.150(a)(1)

- (4) to make clear that the conditions on which these exceptions are based must exist on the date of issuance of the permit. The EPA also commented that the exception in §116.150(d)(3)(A) that allows major stationary sources with a potential to emit less than 100 tpy to forego NNSR if the project increases are offset by a ratio of 1.3 to 1 only applies in serious or severe ozone nonattainment areas.



## 36 TexReg 1330 February 25, 

## 2011 Texas Register The commission agrees with this comment and is changing §116.150(d)(3)(A) to make clear that this exception only applies in a serious or severe ozone 

### nonattainment area. The EPAcommented thatthe exception in §116.150(d)(3)(B) that allows major stationary sources with a potential to emit greater than 100 tpy to sUbstitute BACT for lowest achievable emissions rate is limited to serious and severe ozone nonattainment area and must specify the federal definition of BACT rather than the state BACT for minor sources. The commission agrees with this comment and is changing §116.150(d)(3)(B) to make clear that this exception only applies in a serious or severe ozone nonattainment area. Additionally, the commission is changing §116.150(d)(3)(B) to specifically state that the BACT equivalent required by the rule is federal BACT as identified in §116.160(c)(1)(A). TIP commented that this rulemaking was unnecessary: to ensure anti-backsliding for any Texas ozone 

### nonattainment area; because it would be superseded by a pending EPA rulemaking; and because it would create an undue hardship for business. The commission respectfully disagrees with the comments. Due to EPA's inconsistent positions on anti-backsliding requirements and failure to complete rulemaking to fully implement the D.C. Circuit's opinion in 

### South Coast v. EPA, as discussed earlier in this preamble, there has been confusion and concern regarding anti-backsliding requirements, as reflected in other comments received on this rUlemaking. The rulemaking was necessary to remove prior adopted rule language that conflicted with then-applicable EPA guidance regarding applicability of major source thresholds and emission offset requirements. The commission constantly strives for clarity in its rules, in order for all interested persons to both understand and implement commission rules appropriately under state law. As discussed earlier in this preamble, EPA has issued a final rule redesignating the BPA area as attainment for the 1997 eight-hour ozone standard, and discussing NSR requirements that apply in the BPA area as of October 20, 2010, (75 Federal Register

### 64675). While this final rule provides additional guidance regarding EPA's opinions concerning anti-backsliding requirements, this rule does not have general applicability, and therefore, does not resolve these issues statewide, as assumed by the commenter. Additionally, as discussed elsewhere in this preamble, EPA specifically disapproved the rule language currently in effect regarding anti-backsliding in §116.10(18) and §116.150(d). Regarding the commenters concern that the rule, if adopted, would create an undue hardship for business, the commenter provided no infonnation to support either the type or scope of hardship. No changes were made to the rules as a result of these comments. Zephyr commented that it supported the changes to §116.150(a)(1)

- (4) and TCEQ's efforts to obtain a one-hour ozone attainment designation from the EPA for EI Paso County. The commission appreciates Zephyr'S support. 

## SUBCHAPTER A, DEFINITIONS 30 TAC §116.12 STATUTORY AUTHORITY The amendment is adopted under Texas Water Code §5.102, conceming General Powers, §5.103, concerning Rules, and §5.105 concerning General Policy, which authorize the commission to adopt rules as necessary to carry out 

### its power and duties under the Texas Water Code; Texas Health and SafetyCode, §382.017, which provides the commission with the authority to adopt rules consistent with the poiicy and purposes of the Texas Clean Air Act (TCAA); §382.011, concerning General Powers and Duties, which authorizes the commission to control the quaiity of the state's air; §382.012, concerning Stale Air Control Plan, which authorizes the commission to prepare and develop a comprehensive plan for the proper control of the state's air; and §382.051, concerning Permitting Authority ofthe Commission, which authorizes the commission to issue permits to construct a new facility or modify an existing facility that may emit air contaminants, and authority to adopt rules necessary to comply with changes in federal law or regUlations applicable to penmits issued under the TCAA. The amendment implements Texas \Nater Code, §5.103; and Texas Health and Safety Code, §§382.017, 382.012, and 382.051. 

### §1/6./2. Nonatta;nment andPrevention 

### a/SignificantDeterioration Review Definitions. Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules ofthe commission, the tenns used by the commission have the meanings commonly ascribed to them 

### in the field ofair pollution control. The tenns in this section are applicable to pennit reviev.' for major source construction and major source modification in nonattainment areas. In addition to the tenns that are defined by the TCAA, and in §101. 

### J ofthis title (relating to Definitions), thc following words and tenns, when used in Chapter 116, Subchapter B, Divisions 5 and 6 of this title (relating to Nonattainment Reviev.·' Permits and Prevention of SignificantDeteriorationReview); and Chapter 116, SubchapterC, Di· vlsion I ofthis title (relating to Plant-Wide Applicability Limits), have the following meanings, unless the context clearly indicates otherwise. (1) Actual emissions--Actual emissions as of a particular date are equal to the average rate, in tons per year, at which the unit actually emitted the pollutant during the 24-month period that pre· cedes the particular date and that is representative of normal source operation, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a plant-Wide applicability limit. Instead, paragraph (3) ofthis section relating to baseline actual emissions shaH apply for this purpose. The executive director shall allow the use ofa different time period upon a determination that it is more representative ofnormal source operation. Actual emissions shall be calculated using the unit's actual operating hoW'S, production rates. and types of materials processed, stored, or combusted during the selected time period. The executive director may presume that the source-specific allowable emissions for the unit are equivalent to the actual emissions, e.g., when the allowable limit is reflective ofactual cmissions. For any emissions unit that has not begun normal operations on thc particular date, actual emissions shall equal the potential to cmit ofthe unit on that date. (2) Allowable emissions--The emissions rate ofa stationary source. calculated using the maximum rated capacity-ofthe source (unless the source is subjectto federally enforceable limits that restriet the operating rate, or hours ofoperation, or both), and the most**strin~** gent ofthe following: (A) the applicable standards speeified in 40 Code of Federal RegUlations Part 60 or 61; (B) thc applicablc state implementation plan emissions limitation including those with a future compliance date; or (C) the emissions rate specified as a federally enforceable permit condition including those with a future eompliance date. (3) Baseline actual emissions--The rate of emissions, in tons per year, ofa federally regUlated new source review pollutant. (A) For any existing electric utilit)' steam generating unit, baseline actual emissions means the average rate, intons peryear, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner oroperator within the five-year period immediately preceding when the owner or operator begins actual construction ofthe project. The executive director shall allow the use ofa different time period upon a determination that it is more representative ofnormal source operation. (B) For an existing facility (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the facilit), actually emitted the pollutant during any consecutive 24·month period selected by the owner or operator within the ten-year period immediately preceding either the date the owner or operator begins actual construction ofthe project, or the dale a complete permit application is reccived for a permit. The rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply with the exception ofthose required un· der 40 Code ofFederal Regulations Part 63, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. (C) For a new facility, thc baseline actual emissions for purposes ofdetermining the emissions increase thatwill result from the initial construction and operation ofsuch unit shall equal zero; and for all other purposes during the first two years following initial operation, shall equal the unit's potential to emit. (D) The actual average rate shall be adjusted downward to exclude any non-compliant emissions thatoccurred during the consecutive 24-month period. For each regulated new source review pollutant. when a project involves multiple facilities, only one consecutive 24-month period must be used to determine the baseline actual emissions for the facilities being changed. A different consecutive 24· month period can be used for each regulated new source review pollutant. The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for detennining annual emissions, in tons per year, and for adjusting this amount. Baseline emissions cannot occur prior to November 15, 1990. (E) The actual average emissions rate shall include fugitive emissions to thc extent quantifiable. Until.March I, 2016, emissions previously demonstrated as resulting from planned**mainte~** nance, startup, or shutdown activities; historically unauthorized; and subject to reporting under Chapter 101 ofthis title (relating to General Air Qualit), Rules) shall be ineluded to 

### the extent that they have been authorized. (4) Basic design parameters--For a proeess unit at a steam electric generating facilit)', the owner or operator may select as its basic design parameters eithcrmaximum hourly heat inputand maximum hourly fuel consumption rate or maximum hourly electric output rate and maximum stcam flow rate. When establishing fuel consumption specifieations in terms ofweight or volume. the minimum fuel quality based onBritish thermal units cOntent shall be used for dctermining the basic design parameters for a coal-fired electric utility steam gencrating unit. Thc basic design parameters for any process unit that is not at a steam electric generating facility are maximum rate offuel or heat input, maximum rate of material input or maximum rate ofproduct output. Combustion process units will typically use maximum rate of fucl input. For sources having multiplc endproducts and raw materials, the owncroroperatorshallconsider the primaryproductorprimary raw material when selccting a basie design parameter. The owner or**opera~**



## ADOPTEDRULES February 

## 25, 2011 

## 36 TexReg 1331tor may propose an alternative basic design parameter for the source's process units to the executive director ifthe owner or operatorbelieves the basic design parameter as defined in this paragraph is nol appropriate for a specific industry or type ofprocess unit. Ifthe executive director approves ofthe use ofan alternative basic design parameter, that basic design parameter shall be identified and complianee required in a condition in a permit that is legally enforceable. (A) The owner or operator shall use credible information, such as results ofhistoric maximum capability tests, design information from the manufacturer, or engineering calculations. in establishing the magnitude ofthe basic design parameter. (B) Ifdesign information is not available for a process unit, the owner or operator shall determine the process unit's basic design parameter(s) using the maximum value achieved by the proeess unit in the five-year period immediately preeeding the planned activity. (C) Efficiency of a process unit is not a basic design parameter.(5) Begin actual construction-In general, initiation of physical on-site construction activities on an emissions unit that are of a permanent nature. Such activities include, but are not limited to, installation ofbuilding supports and foundations, laying ofunderground pipework, and construction ofpermanent storage structures. With respect to a change in method ofoperation, this term refers to those on-site activities other than preparator)' activities that mark the initiation ofthe change. (6) Building, structure. facility, or installation--All ofthe pollutant-emitting activities that belong to the same industrial grouping. are located in one or more contiguous or adjacent properties. and are under the control ofthe same person (or persons under common control). Pollutant-emitting activities are considered to be part ofthe same industrial grouping ifthey belong to the same "major group" (i.e., that have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 supplement. (7) Clean coal technology--Any technology, including technOlogies applied at the precombustion, combustion, or post-combustion stage, at a new or existing facility that will achieve significant reductions 

### in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization ofcoal in the generation ofelectricity, or process steam that was not in widespread use as ofNovember 15, 1990. (8) Clean coal technology demonstration projeet--A project using funds appropriated under the beading "Department of Energy-Clean Coal Technology," up to a total amount of $2.5 billion for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the United States Environmental Protection Agency. The federal contribution for a qualifying project shall be at least 20% of the total cost ofthe demonstration project. (9) Comrnence--As applied to construction ofa major stationW')' source or major modification, means that the owner or operator has all necessary preconstruction approvals or permits and either has: (A) begun, or caused to begin, a continuous program ofactual on-site construction ofthe source, to be completed within a reasonable time: or (B) entered intobinding agreements orcontractual obligations, which cannot be canceled or modified without substantial loss to the ovmer or operator, to undertake aprogram ofactual construction ofthe source to be completed within a reasonable time.



## 36 TexReg 1332 

## February 25, 

## 2011 Texas Register (1 0)**Construction~-Any** physical ehange or change in the method ofoperation (including fabrication., erection. installation, demolition, or modification ofan emissions unit) that would result in a change in actual emissions. (11) Contemporaneous period--For major sourees the period between: (A) the date thatthe increase from the particular change oceurs: and (B) 60 months prior to the date that construction on the partieular change Commences. (12) De minimis thresoold test (netting)--A method ofdetermining ifa proposed emission increase will trigger nonattainment or prevention of significant deterioration review. The summation of the proposed project emission increase in tons per year with all other creditable source emission increases and decreases during the contemporaneous period is compared to the significant level for that pollutant, Ifthe significant level is exceeded, then prevention ofsignificant deterioration and/or nonattainment review is required. (13) Electric utility steam generating**unit~-Any** steam electric generating unit that is constructed for the purpose of supplying more than one·third of

### its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose ofproviding steam to a steam-electric generatorthat would produce electrical energy for sale is included in determining the electrical energy output capacity ofthe affected facility. (14) Federally regulated new source review pollutant--As defined in subparagraphs (A) • (D) ofthis paragraph: (A) any pollutantfor which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the United States Envirorunental Pro· tection Agency; (B) any pollutantthat is subjectto any standard promulgated under Federal Clean Air Act (FCAA), §Ill; (C) any Class IorII substance subject to a standard promulgated under or established by FCAA, Title VI; or (D) any pollutantthat otherwise is subject to regulation under the FCAA; except that any or all hazardous air pollutants either listed in FCAA, §112 or added to the list under FCAA, §112(b)(2), which have not been delisted under FCAA, §1l2(b)(3), are not regulatednew source review pollutants unless the listedhazardous airpoIlu· tant is also regulated 

### as a constituent or precursor ofa general pollutant listed under FCAA, § 108. (15) Lowest achievable emissionrate--Forany emitting faciIit)', that rate ofemissions ofa contaminant that does not exceed the amount allowable under applicable new source performance standards promulgated by the United States Environmental Protection Agenc) under 42 United States Code, §74II, and that reflects the following: (A) the most stringent emission limitation that is con· tained in the rules and regulations ofany approved state implementation plan for a specific class or category offacilit)·, unless the owner or operator ofthe proposed facility demonstrates that such limitations are not achievable; or (B) the most stringent emission limitation that is achieved in practice by a specific class or category of facilities, whichever is more stringent.(16) Major facility--An)' faeiHty that emits or has the potential to emit 100 tons peryearor more ofthe plant-wide applicability limit (PAL) pollutant in an attainment area: or any facility that emits or has the potential to emit the PAL pollutant in an amount that is equal to Or greater than the major souree threshold for the PAL pollutant in Table I ofthis section for nonattainrnent areas. (17) Major stationary souree--Any stationary source that emits, or has the potential to emit. a threshold quantity ofemissions or more ofany air contaminant (including volatile organic compounds (VOCs) for which a national ambient air quality standard has been issued. The major source thresholds are identified in Table I ofthis section for nonattainrnent pollutants and the major source thresholds for prevention of significant deterioration pollutants are identified in 40 Code of Federal Regulations (CFR) §51.166(b)(I). A sourcethatemits, orhas thepotential to emit afederally rcgulated new source reviewpollutant at levels greater than those identified in 40 CFR §51.166(b)(I) is considered major for all prevention ofsignificant deterioration pollutants. A major stationary source that is major for VOCs or nitrogen oxides is considered to be major for ozone. The fugitive emissions of a stationary source shall not be included in detennining for any ofthe purposes ofthis definition whether it is a major stationary source, unless the source belongs to one ofthe categories ofstationary sources listed in 40 CFR §51.165(a)(I)(iv)(C). (18) Major modification--As follows. (A) Any physical change in, or change 

### in the method of operation ofa major stationary source that causes a significant project emissions increase and a significantnet emissions increase for any federally regulated new source review pollutant. At a stationary source that is not major prior to the increase, the increase by itselfmust equal or exceed that specified for a major source. At an existing major stationary source, the increase must equal or exceed that specified for a major modification to be significant. The major source and significant thresholds are provided in Table I ofthis section for nonattainmentpollutants. The major source and significant thresholds for prevention of significant deterioration pollutants are identified in 40 Code ofFederal Regulations §51.166(b)(I) and (23), respectively. Figure: 30 TAC §1I6.12(18)(A) (B) A physical change or change in the method ofoperation shall not include: (i) routine maintenance, repair, and replacement; (ii) use ofan alternative fuel or raw material by reasonofan order underthe Energy Supply and Environmental Coordination Act of 1974, §2(a) and (b) (or any superseding legislation) or by reason ofa natural gas curtailment plan under the Federal Power Act; (iiI) use ofan alternative fuel by reason ofan order or rule of42 United States Code, §7425; (Iv) use ofan alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste; tv) use of an alternative fuel or raw material by a stationary source that the source was capableofaccommodating before December21, 1976 (unless such changewould be prohibited under any federally enforceable pennit condition established after December 21, 1976) or the source is approved to use under any pennit issued under regulations approved under this chapter; (vi) an increase in the hours ofoperation or in the production rate (unless the change is prohibited under any federally enforceable pennit condition that was established aftcr December 21.- 1976); (Vii) any change in ownership at a stationary source; (viii) any ehange in emissions ofa pollutant at a site that occurs under an existing plant-wide applieability limit; (ix) the installation, operation, cessation, or removal ofa temporary elean coal technology demonstration projeet, provided that the project complies with the state implementation plan and other requirements necessary to attain and maintain the national ambient air quality standard during the project and after it is tenninated; (x) for prevention ofsignifieant deterioration reviey,**onl)~** the installation or operation ofapennanentclcan coal technology demonstration project that constitutes re-powering, provided that the project does not result in an increase in the potential to emit of any regulated pollutant emitted by the unit. This exemption shall apply on a pollutant-by-pollutant basis; or (xi) for prevention of significant deterioration review only, the reactivation ofa clean coal-fired electric utility steam generating unit. (19) Necessary preconstruction approvals or permits--Those pennits or approvals required under federal air quality control laws and regulations and those air quality control laws and regulations that are part ofthe applicable state implementation plan. (20) Net emissions increase--The amount by which the sum ofthe following exceeds zero: the project emissions increase plus any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases. Baseline actual emissions shall be used to detennine emissions increases and decreases. (A) An increase or decrease in emissions is creditable only ifthe following conditions are met: (i) it occurs during the contemporaneous period; (ii) the executive directorhas not relied on it in issuing a federal new source review pennit for the source and that pennit is in effect when the increase in emissions from the particular change occurs; and (iii) in the case ofprevention ofsignifican1 deterioration review only, an increase or decrease in emissions ofsulfur dioxide, particulate matter, or nitrogen oxides that occurs before 

### the applicable minor source baseline date is creditable only ifit is required to be considered in calCUlating the amount ofmaximum allowable increases remaining availablc. (B) An increase in emissions is creditable ifit is the result ofa physical ehange in, or change in the method ofoperation ofa stationary souree only to the extent that the new level ofemissions exceeds the baseline actual emission rate. Emission increases at facilities under a plant-wide applicabilit)' limit are not creditable. (C) A decrease 

### in emissions is creditable only to the extent that all ofthe following conditions are met: fi) the baseline actual emission rate exceeds the new level ofemissions: 

### 00 it is federally enforceable at and after the time that actual construction on the particular change begins; (iii) the executive directorhas notrelied onit inissuing a prevention ofsignificant deterioration or anonattainment pennit; (TV) the decrease has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change: and



## ADOPTEDRULES February 25, 

## 2011 36 

## TexReg 1333(v) in the case ofnonattainment applicabilit) analysis only. the state has not relied on the decrease to demonstrate attainment or reasonable further progress. (D) An increase that results {Tom aphysical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. An) replacement unit that requires shakedown beeomes operational only after a reasonable shakedown period. not to exeeed 180 days. (21) Offset ratio·-For the purpose of satisfying the emissions offset reduction requirements of 42 United States Code, §7503(a)(1 )(A). the emissions offset ratio is the ratio oftotal actual reductions ofemissions to total emissions increases ofsuch pollutants. The minimum offset ratios are included in Table I ofthis seetion under the definition ofmajor modification, In order for areduction to qualify as an offset it must be certified as an emission credit under Chapter ]01, Subchapter H, Division] or 4 ofthis title (relating to Emission Credit Banking and Trading; or Discrete Emission Credit Banking and Trading), except as provided for in §116.170(b) ofthis title (relating to Applicabilit)' ofEmission Reductions as Offsets).**Th~** reduction must not have been relied on in the issuance ofa previous nonattainment or prevention ofsignificant deterioration permit. (22) Plant-wide applicability limit--Anemission limitation expressed. in tons per year, for a pollutant at a major stationary source. that is enforceable and established in a plant-wide applicability limit pennit under 

### §] 16.] 86 ofthis title (relatingto General and Special Conditions). (23) Plant-wide applicability limit effective date--The date ofissuance ofthe plant.wide applicability limit**permit~** The plant·wide applicabilit), limit effeetive date for a plant-wide applieability limit establishedin anexisting flexible permitis the datethatthe flexible permit was issued. (24) Plant-wide applicability limit major modifica· tion--An)' physical change in. or change in the method of operation ofthe plant-wide applicability limit source that eauses it to emit the plant-wide applicability limit pollutant at a level equal to or greater than the plant-wide applicabilit), limit. (25) Plant-wide applicabilit)" limitpermit-·The new source review permit that establishes the plant-wide applicabilit)' limit. (26) Plant-wide applicability limitpollutant--The pollutant for which a plant-wide applicabilit), limit is established at a major statiOIUlT)' source. (27) Potential to emit--The maximum eapacit)' ofa stationary sourceto emit apollutant under its physical and operational design. Any physical or enforceable operational limitation on the capacity of the stationaJ)' source to emit a pollutant, including air pollution control equipment and restrictions on hours ofoperation or on the type or

. amount ofmaterial combusted, stored, or processed, may be treated as

part ofits design only ifthe limitation or the effeet it would have on emissions is federally enforceable. Secondw): emissions, as defined in 40 Code ofFederal Regulations §5].165(a)(I)(viii), do not count in determining the potential to emit for a stationary source. (28) Project net--The sum ofthe following: the project emissions increase. minus any sourcewitle creditable emission decreases proposed at the source between the date of application for the modification and the date the resultant modification begins emitting. Baseline actual emissions shall be used to detennine emissions increases and decreases. Increases and decreases must meet the creditabilit)· criteria listed under the definition ofnet emissions increase in this section.



## 36 TexReg 1334 

## February 25, 

## 2011 Texas Register (29) Projected actual emissions--The maximum annual rate. in tons per year. at which an existing facility is projected to emit a federall)' regulated new source review pollutant in any rolling l2-month period during the five years following the date the facility resumes regular operation aftcr the project, or in an)" one ofthe ten years following that date. ifthe project involves increasing the facility's design capacity or its potential to emit that federally regulated new soUrce review pollutant. In determining the projected actual emissions. the O'WTler or operator ofthe major stationaJ)" source shall include unauthorized emissions from planned maintenance. startup, or shutdo\\TI activities, which were historically unauthorized and subject to reporting under Chapter 101 ofthis title, to the extent they have been authorized, or are being authorized; and fugitive emissions to the extent quantifiable; and shall consider all relevant information, including, but not limited to. historical operational data. the company's own representations. the company's expeeted business activity and the company's highest projections ofbusiness activity. the company's filings with the state or federal regulatory authorities. and compliance plans under the approved state implementation plan. (30) Project emissions increase--The sum ofemissions increases for each modified or affected facility determined using the following methods: (A) for existing facilities. the difference between the projected actual emissions and the baseline actual emissions. In calculating an)' increase in emissions that results from the project, that portion ofthe facility's emissions following the project that the facil

### ity could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the partieular project, including any increased utilization due to product demand grov.1h may be excluded from the projeet emission increase. The potential to emit from the facility following completion ofthe project may be used in lieu ofthe projected acrual emission rate; and (B) for new faeilities. the difference bemeen the potential to emit from the facilit)' following completion ofthe project and the baseline actual emissions. (3 l) Replacement facility--A facilit)· that satisfies the following criteria:

. (A) the facility is a reconstructed unit within the meaning of40 Code ofFederal Regulations §60.15(b)(1), or the facility replaces an existing facility; (B) the facility is identical to or functionally equivalent to the replaced facility; (C) the replacement does not alter the basic design parameters ofthe process unit; (D) the replaced facilit)' is pennanentl)' removed from the major stationary souree, otherwise pennanently disabled, or permanently barred from operation by a permit that is enforceable. lfthe replaced facilit)' is brought back into operation, it shall constitute a new facility. No creditable emission reductions shall be generated from shutting do'Yt'Il the existing facilit)' that is replaced. A replacement facHit), is considered an existing facility for the purpose ofdetennining federal new souree review applicabilit)'. (32) Secondary emissions--Emissions that would oecur as a result ofthe construction or operation ofa major stationary source or major modification, but do not come from the Source or modification itself. Secondary emissions must be specific, well-defined. quantifiable, and impact the same genera] area as the stationaJ)' source or modification that causes the secondary emissions. Secondary**emis~** sions include emissions from any off-site support facility that wouldThis agency hereby certifies thatthe adoption has been reviewed by legal counsel and found to be a valid exercise ofthe agency's legal authority. Filed with the Office of the Secretary of State on February 11, 2011. TRD-201100545 Robert Martinez Diredor, Environmental Law Division Texas Commission on Environmental Quality Effedive date: March 3, 2011 Proposal publication date: August 27,2010 Forfurther information, please call: (512) 239-0177 not be constructed or increase its emissions. except as a result ofthe construction or operation ofthe major stationary source or major**mod~** ification. Secondary emissions do not include any emissions that come directly from a mobile source such as emissions from the tail pipe ofa motor vehicle, from a train, or from a vessel. (33) Significantfacility··A facility thatemits orhas the potential to emit a plant-wide applicability limit (PAL) pollutant in an wnount that is equal to or greaterthan the significant level for thatPAL pollutant. (34) Small facility--A facility that emits orhas thepotential to emitthe plant-wide applicability limit (PAL) pollutant in an wnount less than the significant level for that PAL pollutant. (35) Stationary sourcc--Any building. structure, facility, or installationthatemitsormayemitany airpollutant subjectto regulation under 42 United States Code, §§7401 et seq. (36) Temporary clean coal technology demonstration project··A clean coal technology demonstration project that is operated for a period offive years or less, and that complies with the state implementation plan and othcr requirements necessary to attain and maintain the national wnbient air quality standards during the project and after it is terminated.



## SUBCHAPTER B. NEW SOURCE REVIEW PERMITS DIVISION 5. NONATTAINMENT REVIEW PERMITS 30 TAC §1l6.150 STATUTORY AUTHORITY The amendment is adopted under Texas Water Code, §5.102, conceming General Powers, §5.103, concerning Rules, and §5.105 conceming General Policy, which authorize the commission to adopt rules as necessary to carry out its power and duties under the Texas water Code; Texas Health and Safety Code, §382.017, which provides the commission with the authority to adopt rUles consistent with the pOlicy and purposes of the Texas Clean Air Act (TCM); §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state's air; §382.012, conceming State Air Control Plan, which authorizes the commission to prepare and develop a comprehensive plan for the proper control of the state's air; and §382.051, concerning Permitting Authority of the Commission, which authorizes the commission to issue permits to construct a new facility or modify an existing facility that may 

# • • • emit air contaminants, and authority to adopt rules necessary to comply with changes in federal law or regulations applicable to permits issued under the TCM. The adopted amendment implements Texas water Code, §5.103; and Texas Health and Safety Code, §§382.017, 382.012, and 382.051. §116.150. 1\'ewMajorSource orMajorModification in Ozone !\'onaftainmentAreas. (a) This sectionapplies to all new sourcercview authorizations for new construction or modification offacilities that 

### will be located 

### in any area designated as nonattainment for ozone under 42 United States Code (USC), §§7407 et seq. as ofthe datc ofissuance ofthe permit, unless the following apply on the date ofissuancc ofthe permit: (1) the Unitcd States Environmental Protection Agency (EPA) has made a finding ofattainment; (2) the EPA has approved the removal ofnonattainment New Source Review requirements from the area; (3) the EPA has detcnnined that Prevention ofSignificant Deterioration requirements apply in the area; or (4) the EPA determines that nonattainment NSR is no longer required for purposes ofantibacksliding. (b) The owncr or operator ofa proposed new major stationary source. as defincd in §116.12 ofthis title (relatingto Nonattainmentand Prevention ofSignificantDeterioration ReviewDefinitions) of"olatile organic compound (VOC) emissions or nitrogen oxides (NO) cmissions, orthe owncr oroperator ofanexisting stationary source ofVOC or NO" emissions that will undergo a major modification, as defined in §116.12 ofthis title with respect to VOC orNO", shall mect the requirements ofsubsection (d)(I)

- (4) ofthis section, except as provided in subsection (e) ofthis section, Table I, located in the definition of major modification in §116.12 ofthis title, specifics the various classifications ofnonattainment along with the associated emission levels that designate a major stationary source and significant level for those classifications

. (c) Except as noted in subsection (e) ofthis section regarding NO", the dc minimis threshold test (netting) is required for all modifications to existing major sources ofVOC or NO", unless at least one ofthe following conditions are met: (I) thc proposed emissions increases associated with a project, withoutregard to decreases, is less than five tons per year (tpy) of thc individual nonattainment pollutant in areas classified under Federal Clean Air Act (FCAA), Title I, Part D. Subpart 2 (42 USC, §7511) classified as Serious or Severe; (2) the proposed emissions increascs associatcd with a project. without regard to decreases, is less than 40 tpy ofthc individual nonattainment pollutant in areas classified under FCAA, Title I, Part D. Subpart I (42 USC. §7502) and for those under FCAA. Title I, Part D, Subpart 2 (42 USC, §7511) classified as Marginal or**Moderate~** or (3) the project emissions increases arc less than the significant level stated in Table I located in thc definition ofmajor modification in §116.12 ofthis title and when coupled with project actual emissions decreases forthe same pollutant, summed as the project net, are less than or equal to zero tpy. (d) In applying the de minimis threshold test, ifthe net emis· sions increases are greater than the significant levels stated in Tablc I located in the definition ofmajor modification in §116.12 ofthis title, the following requirements apply.



## ADOPTEDRULES February 25, 

## 2011 36 

## TexReg 1335(1) The proposed facility shall comply with the lowest achievable emission rate (LAER) as defined in § 116.] 2 ofthis title for the nonattainment pollutants for which the faeility is a new major souree or major modifieation exeept as provided in paragraph (3)(B) ofthis subsection and exeept for existing major stationary sources that have a potential to emit (PTE) ofless than 100 tpy ofthe applicable nonattainment pollutant. For these sources, best available control technology (BACT) can be substituted for LAER. LAER shall otherwise be applied to each new facility and to each existing facility at which the net emissions increase will occur as a result of a physical change or changc in method ofoperation ofthe unit. (2) All major stationary sources owned or operated by the applicant (or by any person eontrolling, controlled by, or under common control with the applicant) in the state must be in compliance or on a schedule for compliance with all applicable state and federal emission limitations and standards. (3) At the time the new or modified facility or faeilities commence operation, the emissions increases from the new or modified facility Or faeilities must be offset. The proposed facility shall use the offset ratio for the appropriate nonattainrnent classification as defined in §116.12 ofthis title and shown in Table I located in the definition ofmajor modification in § 116.12 ofthis title. Internal offsets that are generated at the source and that otherwise meet all creditability criteria can be applied as follows. (A) Major stationary sources located in a serious or severe ozone nonattainment area with a PTE ofless than 100 tpy ofan applicable nonattainment pollutant are not required to undergo nOnattainmcnt new source review under this section. ifthe project increases are offset with internal offsets at a ratio ofat least 1.3 to 1. (B) Major stationary sources located in-a serious or severe ozone nonattainment area with a PTE ofgreater than or equal to IOOtpy ofan applicable nonattainrnent pollutant can substitute federal BACT (as identified in §116.160(c)(l)(A) ofthistitle (relating to Pre· vention of Significant Deterioration Requirements) for LAER. ifthc projectincreases are offset with internal offsets at a ratio ofat least 1.3 to I. internal offsets used in this manner can also be applied to satis£) the offset requirement. (4) In accordance with the FCAA. the pennit application must contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source. Thc analysis must demonstrate that the benefits ofthe proposed location and source configuration significantly outweigh the environmental and social costs ofthat location. (e) For sources located in the EI Paso ozone nonattainment area as defined in 40 Code ofFederal Regulations, Part 81, the requirements ofthis section do not apply to NO:" emissions. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on February 11, 2011. TRD·2011 00546 Robert Martinez Director, Environmental Law DiVision Texas Commission on Environmental Quality Effective date: March 3, 2011 Proposal publication date: August 27, 2010 For further information, please call: (512) 239-0177



## 36 TexReg 1336 

## February 25, 

## 2011 Texas Register 

# • • • TITLE 31. NATURAL RESOURCES AND CONSERVATION 

# PART 1. 

# GENERAL LAND OFFlCE CHAPTER 7. SURVEYING 31 TAC §§7.1

- 7.4, 7.6, 7.7 The General Land Office (GLO) adopts the repeal ofcertain sections in Title 31, Part 1, Chapter 7 of the Texas Administrative Code. The sections repealed are §7.1, relating to Forms,§7.2, relating to Coastal Lands, §7.3, relating to Deeds ofAcqUittance, §7.4, relating to Corrected Patents, §7.6, relating to Surveyor's Maps or Plats, and §7.7, relating to Surveyor's Reports, General. These sections are repealed without changes to the proposal as published in the December 10, 2010, issue of the Texas Regis· ter (35 TexReg 10904) and will not be republished. The repeal results from the quadrennial reView of Chapter 7, reqUired by Texas Government Code §2001.039. BACKGROUND AND ANALYSIS OF REPEALED SECTIONS Following the publication of its Notice of Intent to Review in the June 25,2010, issue of the Texas Regis/er (35 TexReg 5583), the GLO reviewed all rules in Chapter 7 and determined that some of these rules should be modified. In order to accomplish the modification of these rules, the GLO determined that the rules 

### to be modified should 

### be repealed and, immediately thereafter, replacement rules should be adopted in their place. Therefore, concurrently with this repeal of §§7.1 ·7.4,7.6, and 7.7, the GLO is adopting new §§7.1

- 7.4, 7.6, and 7.7 that will replace the repeaied sections. The sections to 

### be adopted have been modified to make the rules more clear and comprehensible to the public and to the GLO. Additionally, the sections to be adopted have been modified to more accurately reflect the current practices and policies of the GLO. REASONED JUSTIFICATION FOR REPEAL The public will benefit from the repeal olthese sections because the adoption of the new rules to replace the repealed sections will streamline the various processes related to surveying public lands and provide the pUblic with a clearer understanding of the policies and procedures of the GLO related thereto. ENVIRONMENTAL REGULATORY ANALYSIS The GLO evaluated the repeal of these sections in light of the regulatory analysis reqUirements of Texas Government Code §2001.0225 and determined that the action is not SUbject to §2001.0225 because it does not exceed express requirements of state law and does not meet the definition of a "major environmental rule" as defined in that statute. "Major environmental rule" means a rule of which the specific intent is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect the economy, a sector of the economy, productivity, competition, jobs, the environment, or public health and safety of the state or a sector of the state. The repeal of these sections is not anticipated to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. PUBLIC COMMENT REQUEST No comments were received on the repealed sections.

# 7ABLES&===================== gRAPHICS Graphic images included in roles are published separately in this tables and graphics section. Graphic images are arranged inthis section in the following order: TitleNumber, PartNumber, ChapterNumberand SectionNumber. Graphic images are indicated inthe text ofthe emergency, proposed, and adoptedroles by the following tag: 

### the word "Figure" followed bythe TAC citation, role number, and the appropriate subsection, paragraph, 

### subparagraph, and so on.



## TABLESAND GRAPHICS February 25, 

## 2011 36 

## Tex.Reg 1347

### Figure: 30 TAC §116.12(18XA)
TABLE I MAJOR SOURCEIMAJORMODmCATION EMISSION THRESHOLDS POllUTANT MAJORSOURCE SIGNIFICANT OFFSET RATIO designationI 

### tons!year 

## LEVEL 2

### taos1year 

### minimum
OZONE (VOC, NOx)' Imargina1 100 40 1.10 to 

## I Dmoderate 100 40 1.15 to 

## I IDserious 

## SO 2S 1.20 to 

## I IV severe 25 25 1.30 to 

## I
CO I moderate 100 100 1.00 to 

## I" Dserious 

## SO SO 1.00 to 

## I"

100 40 l.OOto 

## I" PM,. I moderate 100 

## IS l.OOto 

## I" Dserious 70 

## IS 1.00 to 

## I"

NO: 100 40 l.OOto 

## I"


## Lead 100 0.6 l.OOto 

## I"

I 

### Texas nonatlainment area designations as defined 

## in §101.1(70) ofthis title.

2 

### The significantlevel 

### is applicable only to existingmajor sources and shall be 

### evaluated 

### afternetting, unleas the applicant chooses to apply nonattainment new source review (NNSR) directly to the project. 

### The appropriate netting triggers for existing major sources ofNOx and VOC are specified 

## in § 116.1

## SO ofthis title (relating to New Major Source or Major Modification 

## in Ozone Nonattainment Areas) andfor otherpollutants are equal 

### to the significantlevel listed 

## in this table.

, VOC 

### and NOx are 

### precursors to ozone formation and should be 

### quantified individually to 

### determine whethera source is 

### subjectto NNSR under § 116.1

## SO ofthis title.



## 36 TexReg 1348 

## February 25, 

## 2011 Texas Register

# •• • Correction ofError The Texas Commission on Environmental Quality (TCEQ) adopted amendments to 30 TAC §§Jl6.12, 116.1 I5.116.180,116.182, 116.186, 116.188. Jl6.190. 116.192,116.601, and Jl6.6J7; new §116.127: and reeport, Brazoria County: TYPE OF FACILITY: polyethylene plan R LE VIOLATED: 30 TAC §101.20(l) and §Jl6.115(c). THS , §3 .085(b). 40 CFR §60.18(c)(2), and NSR Pennit Number 4. SC umbers I and 4(B). by failing to keep emissions capture and abate ent equipment in operation when emissions were rou d to it and y failing to prevent unauthorized emissions during event lasting minutes: PENALTY: $10.000; SEP offset amount 0 $4.000 applied t Brazoria County

- Brazoria County Vehicle and uipment Program; NFORCEMENT COORDINATOR: Heather Podlipny, (512) 239- 03: REGIONAL OFFICE: 5425 Polk Aven e. Suite 

### R Houston, Te 77023-1486, (713) 767-3500. (29) COMP : United Structures of Arne' a, Incorporated; DOC T NUMBER: 2010-1598-AIR-E; IDENTIFIER: RN100219708; OCATlON: Houston, Harris oun!)'; TYPE OF FACILITY: tal coating: RULE VIOLA : FOP Number 0-01107, GTC STC Number 7, 30**~C** §§122.143(4), 122.145(2)(A) and ( , and 122.146(1). and T C, §382.085(b), by failing to submit an ual compliance certi cation and deviation report within 30 days a r the end ofthe repo ing period and include all instances of deviatio ; FOP Number 0 1107, STC Number 4, NSR Pennit Number 185 7, SC Numbers C, 9F, and 9H, 30 TAC §.ll6.Jl5(c) and §122.143( • and THSC §382.085(b), by failing to produce monthly reports th demonstr e the emissions from each Emission Point Number. the c tings'V. C content, and the coatings' hazardous air pollutant content; OP mber 0-01107, STC Number 3.A.(iv)l, 30 TAC §122.143(4), d SC, §382.085(b), by failing to conduct quarterly opacity readin

. 30 TAC §122.142(b)(2)(A) and THSC, §382.085(b), by failing to
. elude the applicability of40 CPR Part 63, Subpart MMMM in FO umber 0-01107; FOP Number 0-01107, STC Number 4, NS e 't Number 18557, SC Number 3.B., 40 CPR §63.391O(b) an (c),3 TAC §§Jl3.960, Jl6.115(c), and 122.143(4), and THSC, ,382.085 ), by failing to submit an initial notification and initi compliance eport for 40 CPR Part 63, Subpart 

### MMMM; and FOR umber 0-01 07, STC Number 4, NSR Permit Number 18557, S Number 3.B., 0 CPR §63.3920(a), 30 TAC §§l 13.960, 116.115 ), and 122.143(4), d THSC, §382.085(b), by failing to submit mi-annual complian reports for 40 CFR Part 63, Subpart ; PENALTY: $66,0 ; ENFORCEMENT COORDINATOR: ecca Johnson, (361) 82 3420; REGIONAL OFFICE: 5425 Pol Avenue, Suite H, Houston, exas 77023-1486, (713) 767-3500. (30) COMP ast Company, L.P.; DOC NUMBER: 20I0-1476-AIR-E; ENTIFlER: RNI0593315 LOCATION: Krum, Denton Count)· TYPE OF FACILITY: rage tanks related to oil and gas produ ion; RULE VIOLATE. 30 TAC §1l6.110(a) and THSC, §382. 18(a) and §382.085( , by failing to obtain permit authorization; NALTY: $9,000: ORCEMENT COORDINATOR: HeatherPodli y, (512) 239-260 ; REGIONAL OFFlCE: 2309 Gravel Drive, Fort Worth, Texas 118-6951, (817) 588-5800. TRD· 01100732 Kat een C. Decker Di etor, Litigation Division 1i xas Commission on Environmental Quality

iled: February 22, 2011 very 60 days to ensure that the rectifier and other system componentp operating properly: 30 TAC §334.50(b)(I)(A) and the Co , §2 .3475(c)(I), by failing to monitor the USTs for releases: 30 C §33 .50(b)(2)(A)(i)(1ll) and the Code, §26.3475(a), by faili to test e line leak detectors at least once per year for perfo ance and 0 rational reliability: 30 TAC §334.50(b)(2)(B) and thc ode, §26.34 5(b), by failing to provide proper release detection or the suction iping associated with the USTs; 30 TAC §334.50(d) )(B)(ii) and the ode, §26.3475(c)(I), by failing 

### to provide releas detection for the U T system by failing to conduct reconciliation inventory control at ast once each month, sufficiently accurat to detect a release as s 

### II as the sum of 1.0% ofthe total substance ow-through for the man plus 130 gallons: and 30 TAC §334.50( )(1 )(B)(iii)(f) and the Code, §26.3475(c)(I), by failing to record iny, ntory volume measurement f4 the regulated substance inputs, with awals, and the amount still re . ing in the tank each operating ay; PENALTY: $4,996; ENFOR EMENT COORDINATOR: EI a Maske, (512) 239-0789; REG! AL OFFICE: 2309 Gravel rive, Fort Worth, Texas 76118-695], 817) 588-5800. (24) COMPANY: MBLEWOOD UTILI & WATER SUPPLY CORPORATIO ; DOCKET NUMBE 2010-1727-UTL-E: IDENTIFIER: RNI02 79370; LOCATION: arris County: TYPE OF FACILITY: PWS; ULE VIOLATED: 30 TAC §290.39(0)(l), §291.162(a) and G) an the Code, §13. 95(b)(2), by failing to adopt and submit to the xecutive direc r for approval an emergency preparedness plan t at demonstr es the facility's ability to provide emergency operatio s; PENAL : M20; ENFORCEMENT COORDINATOR: Katy Sch ann, 12) 239-2602; REGIONAL OFFICE: 5425 Polk Avenue, uite Houston, Texas 77023-1486, (713) 767·3500. (25) COMPANY: Steubing 

### F , Limited; DOCKET NUMBER: 2010-1 761-EAQ·E; IDENTIFIE : RN I05929160; LOCATION: San Antonio, Bexar County; E OF FACILITY: construction site; RULE VIOLATED: 30 

### T

. 13.4(a)(I), by failing to obtain approval ofa water pollution tern t plan prior to beginning a regulated activity over the Edwar Aqui r Recharge Zone; PENALTY: $750; ENFORCEMENT RDIN TOR: Jordan Jones, (512) 239-2569; REGIONAL OF ICE: 1425 Judson Road, San Antonio, Texas 78233-4480, (210) 4 0-3096. (26) COMPANY: Sunbe Fresh Water S ply District; DOCKET NUMBER: 2010-2046- WD-E; IDENTI R: RNI02075413; LOCATION: Harris Coun ; TYPE OF FACILI : wastewatertreatment plant; RULE VIOLA: D: the Code, §26.121(a 30 TAC §305.125(1), and TPDES Permit umber WQ001179100I, Effluent Limitations and Monitoring Re irements Number I, by fi ing to comply with pennitted effluent itations for NH;N, and flo PENALTY: $970; ENFORCEMEN COORDINATOR: Thomas J chB, P.G., (512) 239-2576; REG NAL OFFICE: 5425 Polk Avenu , Suite H, Houston. Texas 770 -1486, (713) 767·3500. (27) COMP DOCKET NUMBER: 2010-1833-UTL-E; ENTIFIER: RNI02690 

### 4; LOCATION: Huffman, Harris Coun!) TYPE OF FACILITY. PWS; RULE VIOLATED: 30 TAC §2 0.39(0)(1), §291.l62 ) and (j) and the Code, §13.1395(b)(2). by fair to adopt and sub it to the executive director for approval an e ergency prepare . ess plan that demonstrates the faeili!)" s abili!)' to rovide emerg cy operations; PENALTY: $436; ENFORC NT COO INATOR: Amanda Henry, (713) 767-3672; REGI NAL OFF: CE: 5425 Polk Avenue, Suite H, Houston. Texas 77023- 486. (71 ) 767-3500. ( ) COMPANY: The Dow Chemical Company: DOCKET NU

-

ER: 2010-1781-AIR-E; IDENTIFIER: RNlOO225945; LOCATIO



## 36 TexReg 1590 March 4, 

## 2011 Texas Register

### d order was entered regarding Oscar Palacios dba Tre PalaPit, Docket No. 2010-0013-MSW-E on February 14, OIl 

### g $7,500 in administrative penalties. Inti ation concerning any aspect ofthis order may be obtained co !acting Stephanie 1. Frazee, StaffAttorney at(512) 239-3400, Tex mmission onEnvironmental Quality, P.O. Box 13087, Austin, Tex 711-3087. Information concerning any contacting Anna M. Tread Texas Commission on E Austin, Texas 78711-3087 An 

### agreed order was tered regarding TOOL, INC., Docket N . 2009-2004-MLMc assessing S13,490 in inistrative penalties. Information conce . g any aspect ofthis order contacting Laurenc' Fasoyiro, Staff Attorney Texas Commissio on Environmental Quality, Austin, Texas 787. 1·3087. An 

### agreed order as entered regarding Cit)' ofDallas Docket No.2 -2053-WQ-E on February 14,2011 in administrat' e penalties. Information ncerning any aspect ofthis order may be contacting y L. 

### Mitchell, StaffAttorney at(512) 239-3 00, Texas Commissi n onEnvironmental Quality, P.O. Box 13087, Aus' Texas 78711-3 7.

n agreed order was entered regarding BASF Catalysts LLC, Dock

. 2009-1271-AlR-E on February 14. 20ll assessing $4,365 in' mi istrative penalties with $873 deferred. Info ation concerning any aspect of this order may be 

### ob ned by c tacting Nadia Hameed,. Enforcement Coordinator at 713) 767-3 9. Texas Commission on Environmental Quality, P

.. Box 13087, ustin, Texas 78711-3087. An 

### agree order was entered regarding City ofOakwood. D cket No. 2009-130 MWD-E on February 14,2011 assessing $5,37 

### in administrative pe hies. Information neerning any aspect ofthis order may b obtained by contacting M hall Coover, StaffAttorney at (512) 2 -0620, Texas Commissionon nvironmental Quality, P.O. Box 1308 , Austin, Texas 78711-3087. An 

### agreed order entered regarding David L. 

### S effield dba Texas Landing Utilities, ocket No. 2009-1556-PWS on February 14, 2011 assessing $273' administrative penalties tb $54 deferred

. Information concernin an)' 

### aspect ofthis ord may be obtained by contacting Andrea 

### Lin n-Mgbeoduru, Enfo ement ·Coordinator at (512) 239-1482, Texas ommission On Env' omental Quality, P.O. Box 13087, AuStin, Texa 787ll-3087.

. An 

### agreed order was ente regarding FI Community Water Supply

Corporation, Docket No. 09-1652-P S-E on February 14, 2011 assessing $1,510 in admini tive pen es. Information concerning any ct of is order may be 

### obtained by contacting TammyL.MiteheIl,S 

### iT omeyat(512)239-3400, Texas Commission onEnvironmental Q 

## r , P.O. Box 13087, Austin, Texas 78711-3087. 

# •

• 

# • • the repeal of§ 116.121 in the February 25. 201 Lissue ofthe TexasRegister 

### (36 TexReg 1305). In the Same issue, TCEQ adopted separate rulemaking actions for 30 TAC §116.12 and §1l6.150, which appear on page 1324. Due to errors in the rule text submitted by TCEQ, the phrase ". or are being authorized" was omitted from §116.12(3)(E) 

### on both page 1313 and page 1331. The corrected subparagraph reads as follows: "(E) The actual average emissions rate shall include fugitive emissions to the extent quantifiable. Until March I, 2016, emissions previously demonstrated as resulting from planned maintenance, startup, or shutdown activities; historically unauthorized; and subject to reporting under Chapter 101 ofthis title (relating to General Air Quality Rules) shall be included to the extent that they have been authorized,. or are being authorized." TRD·201100758



### "Where: "n = 

### total number fVOC species in process stre 

### "ESL. = 

### the efli ts screening level in J.lglm3 

### for the c evaluated (pu tShed in the 

### mostrecent edition ofthe 

### "t:, = 

### the w . ht fraction ofthe appropriate VOC species all other C in process stream." Th TexasCommissiononEnvironmental Quality (TCEQ) adopte e repe of30 TAC §106.352 andnew §106.352 inthe February 18, OIl, issue the Texas Register 

### (36 TexR.eg 943). TAC §106.352(m) was published in the on-line (lition of the Texas egister, 

### but was omitted from the print Texas gister 

### because ofth ength ofthe tables. Onpage 340 e on-line graphic, 

### Table 9, first colum , the tenth row should read: "Instrumentmonit . g is notrequiredwhenthe a sure or vapor press is less than 0.044 psia at process operating te 

### rature. "



## INADDITION March 4, 

## 2011 36 

## Tex.Reg 1591